DE RELIGIONIBUS SACRIS ET CAERIMONIIS EST CONTIONATUS: PIETY AND PUBLIC LIFE IN REPUBLICAN ROME

Presented in Partial Fulfillment of the Requirements for

the Degree Doctor of Philosophy in the Graduate

School of The Ohio State University

By

Jack C. Wells, M.A.

* * * * *

The Ohio State University 2004

Dissertation Committee: Approved by Professor Nathan S. Rosenstein, Adviser

Professor Timothy E. Gregory ______Professor Sarah Iles Johnston Adviser History Graduate Program

ABSTRACT

This study explores how piety became a topic for public discussion during ancient

Rome’s middle and late Republican eras (264-31 B.C.). It examines public religious

discussions in Rome, in particular the conflict between P. Clodius Pulcher (c. 92-52 B.C.) and M. Tullius Cicero (106-43 B.C.), who brought each other’s piety to the attention of

their fellow citizens as part of their public rivalry. It aims to understand what caused

disputes over piety and how these disputes were resolved.

Public conflicts involving a person’s piety tended to occur when some novelty or

unforeseen element was introduced into Roman religious life, since in these situations

tradition did not provide guidelines on what the community had to do to fulfill its

obligation to the gods. Such disputes often had a political element to them, but this

‘politicization’ did not indicate corruption and decline. Instead, it was inevitable, given

the link between religion and politics in Roman civic life, that politics would play a role

in religious conflicts. Disputes over piety took place in a wide variety of fora: in the

senate, before popular assemblies, in front of priestly colleges, and in the courts. The

fragmentation of civic (i.e. religious and political) authority in republican Rome made it

possible for a wide variety of individuals and groups to voice their opinions on religious

ii matters, and the very fact that so many people had a say in religious affairs encouraged

disputes over piety to break out. Contests over piety were resolved only after the various groups with authority and the disputants reached some kind of consensus. In cases where this consensus could not be reached, the dispute was difficult to resolve, since an aggrieved party could find many venues in which to state his case. Finally, public debate was healthy for the civic cult, since it kept the Romans focused on and interested in the care of their religion.

iii

To Mom and Dad

iv

ACKNOWLEDGMENTS

This work would not have been possible without the patient help and advice of

my adviser, Dr. Nathan Rosenstein, who read numerous drafts and saved me from many errors. The merits of this dissertation are largely attributable to his efforts to help me

improve it. I have also benefited from the advice and encouragement of the other

members of the Ohio State University faculty, in particular Drs. Jack Balcer, Timothy

Gregory, Sarah Iles Johnston, Joseph Lynch, and Michael Swartz.

I wish to thank my fellow graduate students, Michael Fronda, William Caraher,

Daniel Sarefield, Matt Stockhausen, David Pettegrew, and John Tully. Their advice and

criticism helped make me a better scholar, and I regret that I did not seek their help more

often.

I owe a great deal to the faculty at Virginia Tech, where I first developed my

interest in Roman history. They encouraged me to pursue my studies and helped me take

my first steps toward my goal. I would like to thank John Dillard, Daniel Thorp, Glenn

Bugh, Andrew Becker, Terry Papillon, Nicholas Smith, Thomas Carpenter, and Gina

Soter, who advised and encouraged me when I was an undergraduate. I am also grateful

to Jane Phillips, Hubert Martin, Jr., Ross Scaife, Robert Rabel, Louis Swift, and Terrence

Tunberg of the University of Kentucky, who taught me Latin and Greek, without which I

v could not have conducted research. I also thank Dr. Daniel Gargola, of the University of

Kentucky’s Department of History, whose advice and criticism helped me to develop my skills as an historian.

vi

VITA

August 13, 1970...... Born - Roanoke, Virginia

1988...... Graduated from Northside High School, Roanoke, Virginia

1992...... B. A. History, Virginia Tech

1993...... B.A. Chemistry, Virginia Tech

1995...... M.A. Classics, University of Kentucky

1998...... M.A. History, The Ohio State University

1996-present...... Graduate Teaching Assistant, The Ohio State University

PUBLICATIONS

Research Publication

1. J. C. Wells, B. T. Thompson, and J. G. Dillard, “The Effect of Surface Preparation and Exposure Environment on the Bond Failure Processes in Adhesively Bonded Sheet Molded Composite (SMC),” J. Adhesion 48 (1995), 217-34.

2. Jack Wells, Review of John Scheid’s An Introduction to Roman Religion. The History Teacher 37 (2004), 406-407.

FIELDS OF STUDY

Major Field: Ancient History

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TABLE OF CONTENTS

Page Abstract……………………………………………………………………………………ii Dedication………………………………………………………………………………...iv Acknowledgments…………………………………………………………………………v Vita………………………………………………………………………………………vii

Chapters:

1. Introduction...... 1

2. Piety and Politics in Republican Rome...... 12

Competition, Conflict, and Rome’s Civic Structure………….……….…………14 The Pax Deorum...... …………………………….17 A Question of Authority...... 22 The Limits on Senatorial Authority……………………………………………...23 Vox Populi………………………………………………………………………..33 Contesting Pietas in the Courts…………………………………………………. 45 Adapting to Change: The Flexibility of Roman Ritual…………………………..53 Shades of Gray……………………………………………………………….…..60 Bibulus and Caesar...... 68 Debates about Responsibilities…………………………………………………..70 Conclusions………………………………………………………………………78

3. The Bona Dea Affair……………………………………………………………..81

The Incident at Caesar’s House………………………………………………….83 Why did Clodius Violate the Rites?...... 84 Q. Cornificius……………………………………………………………………90 The College of Pontiffs………………………………………………………….95 The Senate Decides……………………………………………………………...99 The Charge of Incestum………………………………………………………..106 The Fight against the Rogatio Pupia Valeria…………….……...…………….109 Clodius’ Defense……………………………………………………………….115 The Trial……………………………………………………………………….117

viii Resolution?...... 118 Conclusions……………………………………………………………………121

4. The Dispute over Cicero’s House…………………………………………….124

Cicero and Clodius from 62-58 B.C. ………………………………………...127 Displays of Piety as Political Statements……………………………………..130 Cicero’s House………………………………………………………………..135 Pompey and Cicero…………………………………………………………...140 The Stakes…………………………………………………………………….142 Clodius’ Pietas ……………………………………………………………….146 Clodius’ Potential Responses………………………………………………....150 A Conflict over Procedure……………………………………………………152 The Decision of the Pontiffs………………………………………………….167 Rumor, Authority, and Perception……………………………………………169 The Senate Decides…………………………………………………………...173 The End of the Battle?...... 176 Conclusions…………………………………………………………………...177

5. The Response of the Haruspices………………………………………………..181

The Prodigies in 56 B.C. ………………………………………………………184 Clodius Interprets the Response………………………………………………..191 Cicero Answers Clodius………………………………………………………..192 Cicero’s Interpretation of the Response………………………………………..196 The Destruction of Sanctuaries………………………………………………...201 Clodius and the Ambassadors………………………………………………….205 The Bona Dea Affair Redux…………………………………………………...209 Clodius’ Career: Discord and Impiety…………………………………………211 Pietas and Concordia………………………………………………………...... 216 Conclusions…………………………………………………………………….218

6. Conclusions……………………………………………………………………..222

Bibliography…………………………………..………………………………………228

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CHAPTER 1

INTRODUCTION

Over the course of the last three decades a revolution has taken place in the

perception of how the Roman civic cult developed during the republican era. Since the

change in perception of Roman religion has been so profound and forced us to reevaluate

so many things previously thought to be understood, I will begin my study by going

down a very well-trodden path and reviewing how this revolution took place.

The scholars of the nineteenth and most of the twentieth centuries who examined

religious affairs during the republican era (509 B.C. - 31 B.C.) concluded that Roman

religion was in a sad state of decline by the middle of the first century B.C. They looked

at the attitudes of upper class Romans and discovered a cynical group of unbelievers who

had been seduced by Greek philosophy and who employed religion as a political weapon.

Until the 1970s, few seriously questioned Gibbon’s pithy summary of Roman

polytheism: “The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by

the magistrate, as equally useful.”1 Scholars concluded that the Roman nobility of the

1 Gibbon (1980), 1:31.

1 middle and late republican periods (264-31 B.C.) grew ever more cynical toward their

religious system. Calculation of personal advantage replaced faith in the gods, and the

Roman nobles began to manipulate religion for their individual or collective benefit.

Victorious generals erected temples as monuments of their own glory rather than as

offerings to the divine powers who protected the city. Politicians used religion to

obstruct the election of rival candidates or to prevent passage of legislation. The civic cult

became a collection of barren and empty rituals maintained only as a showpiece. As faith

in the traditional cults evaporated, the elite looked to philosophy to provide some

meaning to their lives, while the poor turned to new cults from the east for the same

purpose. From Mommsen to Latte, scholars evaluated republican religion as if they were

conducting an autopsy: analyzing causes of decay, pointing out signs of disease, and

trying to figure out from the withered husk preserved in our late republican sources what

the body looked like when it still had some semblance of youth and vigor.2

All of this changed, starting in the 1970s. Classicists and ancient historians, pushed on by anthropologists, sociologists, and scholars of religion, began to recognize that they had not been examining Roman polytheism on its own merits. Instead they had been judging it first from a Christian point of view that saw belief, not ritual, as the center of genuine religious activity,3 and second from an Enlightenment point of view, which

drew a sharp line between religion and politics and regarded penetrations of one into the

2 Classic discussions that evaluated Roman religion in this way include Cumont (1911); Fowler (1911); Wissowa (1912), 60-72; Rose (1948), 105-106, 124-144; Latte (1960), 264-293; Dumézil (1970), 526-550. Scheid (1998), 9-18 provides a convenient summary and analysis of the ‘decline’ school.

3 This emphasis on belief and condemnation of ritual was especially strong among Protestants in Europe, who regarded the rituals of the medieval church as magic. See Thomas (1971), 256-257.

2 sphere of the other as evidence that one or the other system had malfunctioned.4 Scholars began to argue that Roman public life could not be easily separated into different spheres and that religion and politics in Rome were inextricably linked. In the wake of this new outlook, a whole host of issues had to be reexamined. Classicists and historians concluded that the quest to understand the origins of Roman religion was more complicated than previously believed and that no pristine state of Roman religion could be discerned from our sources, since Roman religion was open to influence from the religions of neighboring peoples, including the Greeks, as far back as our sources will allow us to see.

John North wrote one of the studies that began to transform perceptions about

Roman religion. 5 In it he points out that the conservative aspects of the Roman civic cult

did not prevent it from changing in response to new circumstances, and he notes the

business-like attitude of the Romans toward the gods. North’s approach to his subject was as significant as his conclusions, perhaps more so: he called for an end to studies that

impose value judgments on Roman religion instead of analyzing it. In response to

North’s call, scholars began to attack the starting assumptions of their predecessors.

Liebeschuetz straddled the period between reign of the old interpretation and the

revisionists. He approached his topic with many of the assumptions made by the earlier

generation of scholars, but his careful analysis of the evolution of Roman religion put a

few chinks in the armor of the old paradigm. Like North, Liebeschuetz for the most part

4 On the Enlightenment drive to keep religion out of government, see Gay (1969), 398-401.

5 North (1976), see also North (1979, 1986, and 1995).

3 rejected the assumption that strong connections between religion and politics

demonstrated that Roman religion had begun to decay. However, his discussion focused heavily on the subject of belief, which the revisionists argue should be put aside and replaced by a study of ritual.6 One such study was made by John Scheid, who examined

the consequences of ritual error in republican Rome. He noted the difference between

voluntary infractions of religious law, which the Romans regarded as inexpiable, and

involuntary ones, which could be corrected through the repetition of religious rites.7 He scrupulously avoided judging Roman religion through a Christian or Enlightenment lens, and conducted a thoughtful analysis of the role of priestly officers in Roman public life.

He also emphasized the civic aspects of Roman religion and promoted the idea that the

study of Roman religion must have its foundation in an examination of ritual.8 Alan

Wardman studied how Roman religion incorporated new elements. Whereas his predecessors saw the Romans’ adoption of eastern religious forms as a sign of corruption and decay, Wardman argued that Roman religion had a long history of assimilating religious elements from neighboring cultures. This, Wardman concluded, illustrated the adaptability and health of Roman religion rather than foreshadowed its impending death.9

S.R.F. Price examined the imperial cult in Asia Minor. The introduction to his work

points out the methodological flaws of his predecessors, who assumed that only those

with no real faith in the gods would offer divine honors to an emperor. In particular he

6 Liebeschuetz (1979).

7 Scheid (1981 and 1999).

8 Scheid (1998 and 2001); Linder and Scheid (1993).

9 Wardman (1982).

4 warned against evaluating Roman religion on the basis of belief, since belief was not as

important in Greco-Roman polytheism as it is in Christianity. 10 Numerous other studies

could be mentioned.11 General texts on Roman religion written from the revisionist

point of view are now available in French, English, and German.12

This study will examine how piety toward the gods became a topic for public

debate and discussion in the republican period. Not long ago, there would have been no

need for this study. Since scholars assumed that a political agenda was the only

motivation for introducing the topic of religious behavior into a public discussion, they

could skip discussing religion and focus on what was ‘really’ going on: Roman

aristocrats jockeying for power and influence. But now that we have shed many of our

assumptions about Roman religion and can no longer dismiss public conflicts over

religious issues as simply more evidence of religious decay, a whole series of questions

present themselves. Why did the leaders of the Roman community engage in public conflicts over whether they had fulfilled their obligations to the gods? In what venues did these conflicts take place? What issues were debated? What roles in these disputes were played by the magistrates, the senate, the priestly colleges, and other groups with authority over civic affairs? How were these disputes resolved?

10 Price (1984).

11 See Rives (1998), for a relatively recent discussion of the state of the field.

12 Scheid (1998); Beard, North, and Price (1998); Rüpke (2001). A reaction to the revisionists, or, as they are now sometimes labeled, the proponents of the ‘new orthodoxy’, has already begun. Bendlin (2000) argues against the civic model of religion that serves as the basis for the works of Scheid and North, and argues instead for a market model of Roman religion during the late Republic that emphasizes that a number of religious choices were available. King (2003) challenges S.R.F. Price’s conclusion that discussions of belief presuppose a Christian bias.

5 My study suggests some answers. Public conflicts involving a person’s piety

tended to occur when some new or unforeseen element was introduced into Roman

religious life, since in these situations tradition did not provide guidelines on what the

community had to do to fulfill its obligation to the gods. Such disputes often had a political element to them, but this ‘politicization’ did not indicate corruption and decline.

Instead, it was inevitable, given the link between religion and politics in Roman civic life,

that politics would play a role in religious conflicts. Disputes over piety took place in a

number of fora: in the senate, before popular assemblies, in front of priestly colleges, and

in the courts. The decentralized nature of civic (i.e. religious and political) authority in

republican Rome made it possible for a wide variety of individuals and groups to voice

their opinions on religious matters, and the very fact that so many people had a say in

religious affairs encouraged disputes over piety to break out. Contests over piety were

resolved only after the various groups with authority and the disputants reached some

kind of consensus. In cases where this consensus could not be reached, the dispute was

difficult to resolve, since an aggrieved party could find many venues in which to state his

case. Finally, public debate was healthy for the civic cult, since it kept the Romans

focused on and interested in the care of their religion.

It is difficult to render the Latin concept pietas into English, because whereas

‘piety’ encompasses only religious meanings, pietas describes relationships not just with the gods but also with relatives. Pietas was the state of having fulfilled all obligations owed to the gods and to one’s kin by blood and marriage, and even to one’s fellow

6 citizens.13 The meaning of pietas appears to have evolved over the course of the first few

centuries B.C., and the exact path of that evolution has been a matter of debate. The great

philologist Georg Wissowa postulated that originally pietas referred to matters both

familial and divine, but by the first century B.C. the word was applied almost exclusively

to the former.14 He based his conclusion on passages such as Cic. Inv. rhet. 2.66, which

defines religio as pertaining to the gods and pietas as pertaining to family and country,

which was perceived as essentially a large extended family.15 Wagenvoort studied

Cicero’s use of pietas and, in direct opposition to Wissowa, concluded that pietas

originally applied to the obligations owed to one’s family and fellow citizens and only

began to refer to obligations owed to gods at a late date, during the turmoil of the

transition from Republic to Empire, as Romans tried to explain why they faced so many

political and military crises. 16 He explained that in Cicero’s earlier works, (such as Inv.

rhet.) pietas was applied to relationships with family members, but when we examine

later works, such as De Finibus, we first see pietas referring to relationships with the

gods.17 Koch’s study resolved the scholarly conflict by showing that no dichotomy of

13 Scheid (1998), 26, see also Champeaux (1989) and Scheid (2001), 29-45. For a throrough survey of the shades of meaning of pietas and words related to it, see Tromp (1921), 3-37.

14 Wissowa (1909), 2499-2500.

15 ‘religionem eam quam in metu et caerimonia et deorum sit, appellant, pietatem quae erga patriam aut parentes aut alios sanguine coniunctos officium conservare moneat.’ Cic. Inv. rhet. 2.66. Cf. Cic. Part. or. 78. Abbreviations of ancient works are formatted in accordance with the Oxford Classical Dictionary, 3rd ed., edited by Simon Hornblower and Antony Spawforth.

16 Wagenvoort (1980b), 1-20.

17 ‘nec vero pietas advorsum deos, nec quanta iis gratia debatur, sine explanatione naturae intellegi potest.’ Cic. Fin. 3.73. Wagenvoort explains away earlier (pre-45 B.C.) references to pietas adversus deos found in the Orationes post reditum by casting doubt on the authenticity of those speeches. 7 meaning existed. He argued that there was always a divine element in pietas, since

obligation to family referred to not only to living kinsmen but also to the di parentes, the

souls of dead family members who were honored as divine. By the late 3rd century B.C.,

he concluded, pietas had expanded in meaning to incorporate obligations not just to the di

parentes, but to all gods.18

This study will focus specifically about disputes involving pietas adversus deos,

or ‘piety’, as we understand the concept today. There have been some recent studies on

piety in its other contexts.19 But since it is the reevaluation of religion that has opened

new questions and inspired this study, I have decided to study the religious form of pietas

alone. Extending the scope beyond a study of how the Romans publicly examined each

other’s relationship to the gods would make this work too broad and unwieldy.

This study has two parts. In the first part, which comprises the next chapter, I will

examine contests over piety in the context of Roman civic structure, examining what

roles the various organizations with religious authority played in disputes, and, along the way, I will explore the kinds of issues that were debated. I will focus most of my attention on the 3rd through the 1st century B.C., since the sources for the middle and late

republican periods are much stronger than sources for the early Republic. The history of

Livy is particularly valuable since it preserves the record of a number of religious

controversies. We will see that the senate, which a recent study places at the center of

18 Koch (1941), 1222-1232.

19 E.g., Garrison (1992); Raffaelli, et al. (1997); Bannon (1997).

8 Roman religion as the mediator between the Romans and the gods,20 had an important but not necessarily decisive role in settling religious disputes. We will also see that debates over piety often occurred in the face of the new or the unexpected, and that the resolution of religious controversies through discussion and debate helped Roman religion adapt to change.

The second part, composed of chapters three through five, will explore in detail the role that contests over piety played in one particular public rivalry. We will look at the relationship between M. Tullius Cicero (106-43 B.C.) and P. Clodius Pulcher (c. 92-

52 B.C.). The two men had a number of bitter public battles in the years between 61, when Clodius went on trial for an act of impiety, and 52, when he died. Our sources for this dispute are very good, allowing us to observe the rivalry between the two men in detail, so we do not have to reconstruct the conflict from only tantalizing fragments of information. Our chief sources for this section will be the letters and speeches of Cicero himself.

Chapter three will examine the Bona Dea affair. In 62 B.C. Clodius was discovered sneaking into the house where Roman matrons were conducting their annual sacrifice to the Good Goddess. His actions so offended Roman sensibilities that the

Romans tried him for incestum, expanding the definition of the term to include Clodius’ behavior. As a result he had to publicly defend his piety. We will see in this section that setting the boundary between piety and impiety could be difficult to accomplish in

20 Beard (1990).

9 republican Rome, but it was possible. The college of pontiffs did so when they ruled that

it was impious for a man to be present at the rites to Bona Dea.

Chapter four will explore the dispute between Clodius and Cicero over the site of

Cicero’s house on the Palatine Hill, which Clodius had consecrated and dedicated to the

goddess Liberty during Cicero’s brief exile of 58-57 B.C and which Cicero was able to

reclaim and deconsecrate after an assembly voted to call him back home. In this chapter,

we will see how Roman aristocrats made displays of piety an important part of their self-

image.

Chapter five examines the debate between Clodius and Cicero over how to

interpret the response of the college of haruspices to the senate in 56 B.C. The haruspices

were a group of Etruscan religious experts who provided advice to the senate on how to

expiate prodigies. In 56 B.C. a rumbling was heard in the Latin Territory. The senate

concluded that it was a message from the gods and asked the haruspices to explain why

the gods had sent it. The haruspices replied that the gods were unhappy because of a number of problems in the civic cult and in Roman politics. Cicero and Clodius each presented their own interpretation of the haruspices’ response to their fellow citizens, and, of course, they each accused the other of being responsible for causing the gods’ anger. Cicero’s conception of pietas adversus deos is particularly interesting in this speech, because he expands the traditional perception of piety to include not just actions taken during the rituals of the Roman civic cult, but also political behavior, thus adding another dimension to the link between religion and politics at Rome.

10 Chapter six will present my conclusions. We will see that debates about piety were healthy for Roman religion. Even if the actors in religious conflicts were motivated by political or personal reasons, public debates about religion kept the Roman community interested in its civic cult and gave the whole civic body another means to participate in religious life.

11

CHAPTER 2

POLITICS AND PIETY IN REPUBLICAN ROME

In 173 B.C., Q. Fulvius Flaccus wanted to make the temple he was building to the

goddess Fortuna Equestris the most splendid in Rome. Flaccus was a Roman from a

distinguished family who had been consul and proconsular commander in Spain and was

at that time a member of the college of pontiffs and censor. He had vowed the temple in

180 B.C. after defeating the Celtiberians near Tarraco. Thinking that a marble-tiled roof

would be more impressive than a traditional terracotta one, he had half of the marble tiles

removed from the roof of the temple of Hera Lacinia, which was in Bruttium near the city

of Croton. When he had returned to Rome with the tiles, he discovered that word of his

desecration had spread, and an outraged senate was conducting a debate on what to do about it. Livy reports that the senators were stunned that a man entrusted by his fellow citizens with the care and maintenance of temples and shrines would endanger the entire community by risking the gods’ anger through a religious transgression. They voted to return the tiles to Bruttium and to offer expiations to the goddess. Unfortunately, the technique of placing the tiles on the roof seems to have been lost, since no builder could

12 be found to do the job, and the tiles were dumped near the temple and left.21 Years later, after one son had died in battle and the other was suffering a serious disease, Flaccus committed suicide, and the Romans believed the goddess was punishing him for his crime.22

A question becomes obvious: why would a Roman official commit so blatant an act of impiety? This is especially strange when we consider that Fulvius had held virtually every magistracy, almost all of which had some religious function, and was himself a member of the college of pontiffs. The answer seems to be that he did not perceive that what he had done was impious. He was acting to fulfill a vow he had made to a goddess, and providing the best possible roof for a temple would certainly seem to be a pious act.23 Furthermore, Hera Lacinia was arguably not a Roman goddess. She was part of the civic cult of the Bruttians, so she was a foreign goddess whose interests would naturally (from Fulvius’ point of view) have to be sacrificed for the betterment of the

Roman civic cult. Roman generals often had no qualms about despoiling foreign

21 Livy 42.3.1-11; Val. Max. 1.1.20; Toynbee (1965) 2:631-632. Scullard (1973), 193-4; Scheid (1981), 140-142; Champeaux (1987), 133-140; Orlin (1997), 138-139; Mueller (1998), 247-252; Rosenberger (1998), 21-22. Val. Max. 1.1.20 places the temple of Hera Lacinia at Locri, but the temple was actually located near Croton, as is noted in Val. Max. 1.8.ext.18; see Mueller (1998), 248. The temple of Hera is otherwise noteworthy because Hannibal inscribed a lengthy account of his achievements in Italy on a bronze tablet at the site. It was also, apparently, famous for its sanctity. See Polyb. 3.33.18 and Livy 24.3. The fate of the tiles is informative. The Romans seemed willing to leave the tiles on the ground, judging that they had done everything they could to repay the goddess for Flaccus’ sacrilege: the expiatory sacrifices had sealed any breach in the community’s relations with Hera. As to the repair of the temple, they were willing to leave that up to the Bruttians.

22 Livy 42.28.10-12; Val. Max. 1.1.20.

23 One might argue that Fulvius was cynically manipulating religion for political benefit by using religion as a means to glorify himself, but it is hard at this distance to evaluate his motives, which might have been more complex. Even personal advancement was his chief goal, the relevant point here is that a Roman noble with his career and experience in civic affairs might be expected to know how his fellow aristocrats would react to his behavior, and it seems clear that he did not.

13 temples.24 Sometimes, however, the Romans decided that special care must be taken when handling apparently foreign cults. The ambiguity in the status of temples outside

Rome complicated the process of deciding what kinds of actions constituted pious or

impious behavior. As a result, and what is the interesting point here, a Roman aristocrat and priest who had as thorough knowledge as anyone of what constituted proper behavior toward the gods could believe that he acted piously when many of his fellows thought he acted impiously. It was not always clear-cut whether someone had acted properly toward the gods, whether he had demonstrated pietas adversus deos.

Competition, Conflict, and Rome’s Civic Structure

Rome’s political and religious institutions were structured in such a way as to prevent one single person from obtaining too much power. Thus authority was invested

in a number of different persons or groups, whose spheres of influence overlapped. This

fact has two implications relevant for our study. First, civic structure encouraged

competition for influence, power, and authority within the community. Second, since

multiple sources of religious authority existed, it was not always clear who had the right

to decide religious disputes. Both of these meant that piety adversus deos, fulfillment of

obligations to the gods, became a subject for public dispute. Since keeping the gods

pacified often had implications not just for an individual but also for the community,

pietas was a political as much as a personal issue. And because Rome’s civic structure

encouraged competition for power and influence, a citizen’s religious actions were

24 Most famously, perhaps was the plunder of the Delphian temple of Apollo by L. Cornelius Sulla in 87 B.C.; see Plut. Sull. 12.4-5; App. Mithr. 8.54.; Diod. Sic. 38/39.7. See also the discussion of Q. Pleminius below, pp. 60-69.

14 observed by his neighbors, and if he failed to meet his obligations, an enemy would

almost certainly publicize this fact. In addition, a public figure could believe that he had

met all of his obligations, but if an argument could be made that he had lapsed, someone was going to notice and make the argument. Finally, multiple sources of religious authority meant that disputes over pietas could begin in a number of different places.

The structure of the cursus honorum also encouraged public contests over pietas.

All Roman magistracies were governed by the principles of collegiality and annuality.

Every magistrate had at least one colleague and had a term of office that lasted one year.

The most prestigious offices, consul, praetor, curule aedile, and censor, virtually always had more candidates seeking them than positions available, making them the objects of fierce competition. Many magistrates had religious duties as well as political ones, and competitors for advancement would pay close attention to see if their rivals carried out these duties out in a proper manner.25 The aediles, for instance, were entrusted with the responsibility of providing games and overseeing public festivals; in many ways they

epitomize the connection between religion and politics in Roman civic life.26 While the

state allotted them a certain sum to pay for the festivals, ambitious office holders would

spend vast sums of their own money in hopes that extra expense would encourage their fellow citizens to think well of them and elect them to higher office. The most famous practitioner of this was Julius Caesar, who borrowed heavily and spent liberally as aedile and reaped the reward: in the year of his aedileship he was elected pontifex maximus,

25 For a review of the structure of Roman politics, see Lintott, (1999), 17-30.

26 For a discussion of the role of the aedile in Roman politics, see Lintott (1999), 129-133.

15 arguably the most important religious officer in the Roman state. M. Calpurnius Bibulus,

Caesar’s fellow curule aedile, complained that he shared expenses with Caesar but got none of the credit for the lavishness of the games;27 yet we should not fail to note that like

Caesar himself, Bibulus was elected to the consulship in his first attempt, so perhaps all

of Bibulus’ generosity did not go unnoticed. The expense of the aedileship was not just a

display of generosity. Since these games were given on behalf of the community as an

offering to the gods, they were also a display of both individual and communal piety.

The consuls also had an important religious role. Their first public act as consul was to seal the bond between Rome and Jupiter by presiding over the sacrifices to the god on the Capitoline, and after the sacrifice they attended a meeting of the senate and announced the date of the Latin Games.28 In addition, consuls and praetors held auspicium, the right to seek the auspices on behalf of the community as a whole,29 which they were required to do before taking actions of public import such as conducting elections, calling legislative assemblies, and fighting battles.30

There were Roman officials whose purview was chiefly religious; these were

usually grouped into colleges. The three most important of these were the college of

pontiffs, which had a variety of different religious duties and advised the senate on

religious matters, the (quin)decemviri sacris faciundis, who kept the Sibylline Books and

advised the senate on expiation of prodigies, and the augurs, who specialized in

27 Suet. Iul. 10.1

28 Scullard (1981), 52-58; Graf (1998).

29 On auspices, see below, p. 21.

30 Lintott (1999), 102-104; Scheid (2001), 68-69.

16 divination. The authority of these colleges rested on two pillars: sacred texts, none of

which survive and the interpretation of which was very likely a matter of debate among

the members of the college, and on tradition, which depended on the authority of the

older members of the college and which was again a matter open to debate.31 Thus, when

a college was called upon to render a decision on whether proper religious procedure had

been followed, the decision was not necessarily easy to make. Furthermore, a college did

not act on its own accord to intervene in disputes over issues which fell under its

purview. It usually had to be asked by a magistrate, or, more frequently, by the senate.

Finally, the priests were drawn from the Roman aristocracy, and membership in a priestly

college did not exclude a career on the cursus, so a member of a priestly college was

often also a magistrate or a senator. 32

The Pax Deorum

Roman religion focused its efforts on propitiating supernatural forces using

religious ritual. The Romans conceived of their gods as reasonable entities who had a

vested interest in the preservation of the Roman state. Though the gods’ approval and

goodwill could never be taken for granted, they were receptive to bargains, and much of

Roman religious activity revolved around the offering of sacrifices and vows designed to

31 See Linderski (1985) and (1986a), 2241-56; Beard (1991); and North (2000a) for discussions of texts in Roman religion.

32 For a review of the functions of the priestly colleges, see Beard (1990) and Beard, North, and Price (1999), 18-30. For a discussion on the composition of the colleges see Hahm (1963); Jocelyn (1966); Szemler (1972). For thorough specific discussions on the pontiffs see Bouché-Leclerq (1871) and for the augurs see Catalano (1960) and Linderski (1986a).

17 win their favor. It was this complex series of offerings that bound the human and divine

parts of the Roman community together.33

The perception that the gods, if not controllable, were reasonable, influenced how

the Romans approached them. The Romans felt confident enough to give themselves

wide latitude in formulating vows and in fulfilling their side of the bargain. For example,

in 217 after a disaster at Trasimene, the Romans vowed a ver sacrum (Sacred Spring),

which promised Jupiter all of the livestock born in the Spring season of a certain year in

exchange for the protection of the community.34 When the Romans proposed the

offering to Jupiter, they gave themselves a lot of room in which to maneuver. For

instance, they made certain that they could select the time and rite employed for the offering, and insisted that Jupiter not hold it against the Romans if some of the animals destined for sacrifice died or were stolen.35 The way they approached the offering of the

Sacred Spring indicates that the Romans perceived Jupiter to be flexible in his demands of them. The assumption that Jupiter was flexible also governed the operation of auspicia de tripudiis, the procedure for finding the auspices on the battlefield.36 Roman

religious practice required the Romans to make certain that they had the support of the

33 Beard, North, and Price (1998), 34.

34 Livy 22.10.2-6; Heurgon (1957); Nock (1986)1:481-483.

35 Nock (1986), 1:481-492 and North (1976), 4-6. Note that Beard, North, and Price (1998), 34 affirm that the Roman religious apparatus kept the gods supporting the community through ritual, but reject Nock’s and North’s interpretation that the gods were essentially contractually obligated to act in certain ways provided that the Romans carried out the proper rituals.

36 Brennan (2000), 15-18 provides a convenient discussion of auspicium, the right to take auspices on behalf of the community. For a discussion of the auspicia de tripudiis, see Valeton (1891), 211-215 and Linderski (1986a), 2155-2156.

18 gods before they took a variety of communal activities such as conducting elections, passing legislation, or fighting battles. The process of ascertaining whether this favor existed is known as auspication. The Romans used the behavior of birds as an indicator of Jupiter’s mood, most famously at the founding of the city, where Romulus and Remus

(so the legend has it) each watched the sky for a sign that Jupiter approved of the creation of the new settlement.37 The gods delivered with two flights of birds. Under augural law the sight of birds eating and causing crumbs of food to fall to the ground was a sign of divine approval. The Romans were not willing to take precious time before battles waiting for birds to provide signs, so they developed a convenient system. They brought the birds along in cages and kept them hungry so that they could be fed the proper food when the time for battle was at hand. In most cases, the birds acted exactly as hungry birds could be expected to act; they ate and crumbs fell on the ground, thus demonstrating that Jupiter approved of fighting on that day. This system allowed the greatest possible flexibility for the Romans, who had an easy and fast way to find a favorable sign, while it still allowed for communication with the divine. After all, Jupiter was powerful enough to intervene and prevent the birds from eating if he wanted to reveal his disapproval, and, of course, it was not inevitable that the birds would eat when fed by the pullarii, so auspication de tripudiis still contained the element absolutely necessary for forms of divination: the outcome could not be guaranteed.38

37 Livy 1.6.3-1.7.3; Levene (1993), 129-131.

38 ‘Quintus’ in Div. 1.27-28 argued otherwise, stating that this kind of auspication did not really have an element of chance in it. But auspication de tripudiis could not guarantee that the birds would eat. It did stack the odds considerably in the Romans’ favor, but this simply revealed the confidence the Romans’ had in their relationship with the gods. M. Claudius Marcellus, cos. 222, displayed a similar confidence when, according to the story, he insisted on being carried around in a closed litter so he could not see unfavorable 19 The agreement between the human and divine members of the Roman community is known as the pax deorum.39 The apparatus of the civic cult was set up to maintain the pax. While the Romans believed that the gods were reasonable and open to negotiations and that the gods were willing to allow the Romans latitude in constructing the terms of an agreement, they also believed that the gods expected exact and punctilious fulfillment of the terms once a bargain had been struck.40 If the Romans failed to carry out one of the rituals in a proper fashion, then the agreement was broken and the gods could withdraw their favor. This could be disastrous for the community, given the scope of the gods’ power. However, if something went wrong and the Romans made an error in making an offering, all that was required to repair the breach was an instauratio, a repetition of the rite in which everything was done properly.41 This was usually done

immediately to limit the damage to the pax, but not all ruptures of the pax were noticed

immediately.

signs (Cic. Div. 2.77; Pliny N.H. 28.17). In theory, Jupiter’s power was such that he could get in touch with Marcellus if he really wanted to. Marcellus was merely making conditions for his ability to operate as a commander as favorable as possible for himself. Likewise Ov. Fast. 3.329-344, where Numa Pompilius stands before Jupiter and demands to know how to expiate the prodigy of a thunderbolt. When Jupiter orders him to cut off a head, Numa replies he will be happy to cut off the head of an onion. When Jupiter responds, ‘a man’s’, Numa quickly interjects ‘his hair’. When Jupiter demands a life, Numa offers the life of a fish. Jupiter, admiring Numa’s presence of mind when communicating with the divine, accepts Numa’s terms and calls him a man ‘worthy to treat with the gods.’

39 On the pax deorum, see Joceyln (1966), 92-96, 103; Goar, (1972), 12-14; Rosenstein (1990) 56-57; Rosenberger (1998), 17-25; Scheid (1998a), 125-126.

40 North (1976), 6 makes an apt comparison between the gods’ attitude toward the fulfillment of ritual obligations toward them and the Romans attitude toward the repayment of debts owed to them (as seen in Polybius 31.27.10-11): they expected to be paid the exact amount on the agreed-upon day: not a day later— but not a day earlier either. See also Beard, North, and Price (1998), 34.

41 On the correction of ritual error see Tromp (1921); Scheid (1981 and 1999); Cohee (1994).

20 If the Romans failed to maintain the pax, the gods would send them warnings

called prodigia that indicated the pax had been broken. Ominous signs, usually unnatural events such as monstrous births or rains of stones, would be reported to the senate. It was up to the senate to determine if a reported sign was in fact a message from the gods; if the senators concluded that reports indeed indicated that the gods had sent a prodigium, they

could rely on two groups of religious experts to help them decide how to expiate it. First,

the (quin)decemviri sacris faciundis had access to the Sibylline Books and the expertise

to interpret them; these ancient prophetic texts could be consulted on how to placate the

gods. Second, the Romans kept a college of religious advisors from Etruria, the

haruspices, who were trained to ascertain the will of the gods and who could offer advice

both on whether an event was a prodigium and on how to expiate it if it was.42

The gods also warned if they disapproved of a particular communal action, and

the Romans kept a group of specialists trained to look for and interpret any possible sign

of the gods’ approval or disapproval. These men were the augurs, and their specialty was

auspication.43 Auspices, such as the auspicia de tripudiis mentioned above, were signs from the gods indicating that an action was acceptable or unacceptable. In some cases, such as before the meeting of an assembly or before a battle, a Roman magistrate with the right of auspication would actively seek favorable auspices; this kind of auspication has

been classified as auspicia impetrativa. In contrast, those signs (such as a thunderclap

42 On the reporting and expiation of prodigies, see Bloch (1963), esp. 112-157; Liebeschuetz (1979), 7-29; McBain (1982); Beard, North, and Price (1998), 37-39; Rosenberger (1998); Scheid (2001), 69-72.

43 Linderski (1986a) has the best recent discussion of augury and auspication, but see also Valeton (1891) and Brennan (2000), 15-18.

21 during the meeting of an assembly) which occurred without their being sought are known as auspicia oblativa. During many public occasions, augurs would be present to advise

magistrates and help them interpret auspicia oblativa. Continuing a public activity in the face of auspices indicating the disapproval of the gods (or taking action without having received auspices which showed divine approval) could rupture the pax deorum. As we

will see, a number of contests where pietas was the main issue revolved around whether

an individual had acted even though he had failed to receive the auspices.

A Question of Authority

Conflict over fulfillment of religious obligations occurred because Roman

religion had no central authority. Mary Beard sums up the situation nicely:

Ancient civic paganism was a religion of no fixed centre, a religion whose centre was (in Derridean terms) constantly deferred. It consisted not so much in a defined and closed body of doctrine but in a series of interpretations and reinterpretations – satellites around an elusive and intangible core. The structure of religious authority followed much the same pattern.44

Roman religion did not have a fixed series of rules understood or agreed upon by all:

questions of interpretation could thus easily crop up. The Romans did not have one

institution that was empowered to decide religious matters; many different bodies could

and did get involved in the process of making decisions. Since there was no single

authoritative individual or group that controlled religion, the Romans used the same

methods to solve religious disputes that they used to decide other civic matters.

Disputants tried to win the support of their fellow citizens and especially their fellow

aristocrats. This required that they state their case in public, before the senate or before

44 Beard (1990), 42.

22 the populace in contione. Sometimes they had to argue their points before meetings of priestly colleges; sometimes the issue had to be settled judicially with either the populus

Romanus or a quaestio acting as jury.

The structure of Roman religion makes analyzing contests over pietas difficult.

The best way to start is to study the role the various institutions played in creating and

resolving religious disputes, while keeping in mind that in Rome “religious authority in

the general sense has to be located in the interaction . . . of magistrates, senate, and

priests.”. . .45

The Limits on Senatorial Authority

Recent studies have demonstrated that the senate played a central role in managing the Roman civic cult.46 The auctoritas of the senate during the republican

period was tremendous, and if it bent its will in a certain direction, the state almost

always followed. Occasionally the senate was able to quash religious conflict by

imposing that authority on the disputing parties. We have seen that when Fulvius Flaccus

tried to defend himself, the senate almost unanimously condemned him for tearing the

roof off of the temple of Juno Lacinia, and its decision to return the roof and make

expiation to the goddess was quickly implemented. Yet if we examine incidents of

religious conflict in the Roman state, very often the senate seems to yield its

responsibilities to individual magistrates, groups of magistrates, priestly colleges, the

45 Beard, North, and Price (1998), 30.

46 Beard (1990), 30-34, e.g., stresses that the senate acted as the body that mediated between the gods and the Roman community. Orlin (1997), 190-191 and passim argues that in cases where Roman magistrates vowed to construct temples, the senate had a wide-ranging authority to oversee the consecration and construction.

23 assemblies, or the courts. While the theoretical authority of the senate was very great, it

occasionally happened that the body could not, or chose not to, employ that authority in

religious disputes. The senate was not a monolithic body but was composed of

aristocrats, each of whom competed with the others for political prominence and each of

whom had political allies and opponents in that body. Unanimity could not always be

obtained, and it was sometimes necessary or expedient for the senate not to get involved

in religious conflicts, even when those conflicts were pertinent to state business.

Furthermore, the senate’s influence was limited by the fact that it could not legislate;

unhappy disputants could take their complaints to a voting assembly, which could resolve

the matter through legislation. In the late Republic (133-31 B.C.), the senate’s authority

was challenged more and more frequently, and disputants were more and more willing to

bypass the senate and take their cases directly to the assemblies. A further complicating

factor crept in during the last century of the republic as violence became more of a factor

in politics, because senators could be cowed by fear of harm. Let us look at some

examples of disputes over piety where the senate had only a limited influence on the

course and outcome of the debate.

In 163 B.C., Ti. Sempronius Gracchus, consul for that year, was conducting

elections for the consulship of the subsequent year. The man chosen to report the results

of the vote (the rogator) of the first century dropped dead in mid-report. This might have

been regarded as an ominous sign, but Gracchus ignored it and continued with the

election. He perceived, however, that the public was disturbed by the incident and so

referred the matter to the senate. The majority of senators decided to treat the matter as if

24 were a prodigium and, according to custom, referred it to the haruspices.47 The job of

the college of haruspices was to determine what had caused the breach and what steps

could be taken to repair it. The haruspices replied that the election was vitiated.48 A

furious Gracchus denounced the haruspices as ‘Tusci et barbari’ and asserted that

because he was a Roman consul and augur who had carried out his duties under proper auspices, he had full authority to decide the fitness of the electoral procedure. On the

way to his province, however, he wrote to the college of augurs and reported that he had had been reading some books on religion and realized that he had made a mistake when

taking the auspices on the day of the elections. He had crossed the pomerium without

having completed the auspices, did not take the auspices a second time when he reentered

the city’s boundary, and was thus acting inauspicatus.49 The augurs referred the matter

to the senate, the senate concluded that the consuls were creati vitio, and the consuls

resigned.50

This incident provides an example of conflict between two branches of Roman

religious practice: augural law and haruspical science, and it shows how such a conflict

could paralyze the senate. The death of the man chosen to report the vote could, at

Gracchus’ discretion, have been interpreted as a message from the gods, a portent that

there was something wrong with the electoral procedure, but he chose to ignore it and

47 ‘Senatus quos ad soleret referendum censuit.’ Cic. Nat. D. 2.10.

48 Cic. Nat .D. 2.10.

49 Since the proper auspices had not been taken, the Romans could not be certain that any public business carried out that day had Jupiter’s endorsement.

50 Cic. Nat. D. 2.10-2.11, see also Cic. Q. Fr. 6 (II.2).1, Val. Max. 1.1.3, Plut. Marc. 5.1-3; Scullard (1973), 226-7; Linderski (1986a), 2158-2161 and n. 37, (1986b), 332-333.

25 proceeded with the elections. The elections were completed and consuls were selected.

Public pressure, not the senate’s initiative, seems to have persuaded Gracchus to look into the incident again, so he referred the matter to the senate, expecting that the senate would use its authority to support his decision to continue with elections. When the haruspices advised the senate that the rogator’s death, Gracchus refused to accept their advice in spite of the fact that these men were trained to recognize and expiate prodigies. Instead he put his confidence in his own ability to take the auspices up against the authority of the haruspices. As consul and augur, he too knew what proper religious procedure was

(or he thought he did), and he refused to yield to the opinion of outsiders and perhaps by implication to the senate who employed them as experts. In this case, the Roman system, which divided religious authority among many different individuals to keep it out of the hands of one man,51 also led to a dispute between experts in two kinds of religious

practice: auspication and haruspication.

The senate’s reaction to Gracchus’ bitter outburst is illuminating. It did nothing.

Gracchus himself left for his province with the consuls still in place, and it seems they

would have carried out the duties of their office for the full term had Gracchus not

realized his error and written to the college of augurs about it. The senators left the ball

in Gracchus’ court. He, not the senate, ultimately took the steps that brought about the

resignation of the consuls and resolved the dispute. The senate’s refusal to act may

indicate that it had been persuaded by Gracchus’ arguments; he was an augur, and he did

51 Beard (1990), 43.

26 (apparently) receive favorable auspices before he conducted the election,52 and neither he nor the assistant from the augural college who was present at the election chose to interpret the death of the rogator as a portent. In other words, two sources of authority from two different religious disciplines (augural and haruspicial) had come into conflict, and many senators may not have known which to support. Political considerations also might have influenced the senate. In 173 B.C., the senate had to deal with only one aggrieved aristocrat (Fulvius Flaccus), but Gracchus’ obstinacy undoubtedly gave heart to the two men who had been elected, and they and their allies may very well have discouraged the senate from acting on the haruspices’ recommendation.

Only after the conflict between the religious experts ended did the senators act. It is important that we remember this, since Linderski used the affair of 163 B.C. to illustrate the wide scope of the senate’s authority over civic issues involving religion and politics.53 He correctly points out that once Gracchus had reported his mistake to the

college of augurs and once the college advised the senate that the consuls had been vitio

creati, the ball was entirely in the senate’s court. It alone had the discretion to act. Yet if

we analyze the issue only from a constitutional point of view we miss the big picture.

The senate alone had the right to act, but it failed to do so until the conflict was

essentially resolved by Gracchus and the college. Once the augurs had made their

52 Or at least the senate had to presume that he had received favorable auspices, because at this point they did not realize his error.

53 “The procedure is clear: the augurs establish the occurrence of the vitium, and report their findings to the senate. Formally the collegium plays no role beyond that point. It was within the competence of the senate (but not within the competence of the collegium) to annul a law or to decree ut abdicarent consules.” Linderski (1986a), 2160-2161. The point Linderski is trying to illustrate is that the augurs had a limited freedom of action that was circumscribed by the senate; they did not have the iuris dictio to order magistrates to declare laws or elections null and void on religious grounds.

27 recommendation, which agreed with the earlier judgment of the haruspices, the senate

took the initiative, but by this point there was really only one thing the senate could do—

declare the election null and void and order a new one.54 The senate alone had the right to decide what to do, but its decision was essentially made by Gracchus and the college of augurs.

Senatorial inertia extended the career of another Roman aristocrat, C. Flaminius, cos. 223 and 217. In 223 he won a victory over the Gauls, but he did so after his election had been declared vitiated. He received a letter from the senate asking him to resign, but, apparently aware of its contents, he refused to read it. According to some traditions he also ignored unfavorable auspices before the battle. He led his troops out anyway and gained the victory. In spite of apparently numerous violations of religious procedure, the only action the senate took was to deny him a triumph, which he obtained anyway through a vote of the people.55 Flaminius’ popularity (as evidenced by the triumph he

received in the teeth of senatorial opposition) made any attempts to censure him for

impiety pointless. Again the senate chose not to intervene. Many senators doubtless felt that Flaminius had committed gross acts of impiety, but they did not attempt to punish him. Roman custom hindered any attempt to bring Flaminius up on charges, because while the Romans disapproved of public impiety it was not normally a crime.56

54 As Linderski himself noted: “The senators were not obliged to follow the opinion of the augurs, but at the same time it was in most cases rather impossible for them to disregard the responsa of the collegium for this could have meant great peril for the state.” Linderski (1986a), 2162; cf. Linderski (1986b), 332-333.

55 Sources for Flaminius’ consulate in 223: Livy Per. 20, 21.63, 22.3, 22.6.3, 23.14.4; Sil. Ital. 4.704-6, 5.107-113, 5.649-55; Plut. Marc. 4.2-5, 6.1, Fab. 2.4; Flor. 1.20.4; Oros. 4.13.4; Zon. 8.20. See Scheid (1981), 143-144; Levene (1993), 38-40.

56 For a discussion of the criminal and legal aspects of impiety, see below pp. 45-53. 28 Furthermore, the victory itself could be regarded as a divine sign that the gods supported

Flaminius, whatever others asserted about the impiety of his actions. In a sense, the victory provided an alternative source of religious authority that Flaminius could set up against his detractors.

In the first century B.C. the senate could also be intimidated with the threat of violence. This occurred in 59 B.C., during Caesar’s consulship.57 After entering office in

January, Caesar’s first goal was to pass a law providing land for Pompey’s veterans. This

law was vigorously opposed by many senators and by Caesar’s colleague Bibulus. Caesar

was determined not to be stymied either by tribunician veto or by his colleague. Bibulus

tried to stop Caesar through the traditional procedure of looking at the sky and

announcing that an evil omen had been received, a means of obstructing public business

known as servatio (de caelo servare).58 When a magistrate announced that he was

watching the sky for signs from the gods, public business stopped until he had finished, at least according to traditional political practice. This was not just custom; during the second century the process of obnuntiating had been confirmed by a law governing voting procedure, the lex Aelia.59

57 We have a large number of primary sources for Caesar’s consulship; for a full list see Broughton (1952) 2: 187-193. Modern surveys are equally large in number; for a thorough discussion of Caesar’s consulship and legislation see Gelzer (1968), 71-101; Meier (1995), 204-223; Seager (2002), 88-100.

58 De caelo servare specifically referred to an announcement by a magistrate that he was searching the sky for omens from Jupiter. Obnuntiatio was the technical term for the act of reporting any signs, if seen, to a public official, usually a magistrate presiding over a voting assembly. The announcement that a magistrate was searching the sky was usually enough to cause public business to grind to a halt, since it was presumed that if he was taking the time to look he would find something. For a review of the procedure see Valeton (1891) and Lindersky (1965). For a discussion of the use of servatio and obnuntiato as means of obstructing public business, see De Libero (1992), 56-64.

59 The problem of ascertaining the exact provisions of the lex Aelia is a tricky one. Our main sources come from the 50s B.C., mostly from Cicero’s complaints about a law of Clodius passed in 58 modifying the 29 When Bibulus announced that he was watching the heavens, Caesar refused to call off the legislative assembly he had summoned. This forced Bibulus to obnuntiate, to make a public declaration to his colleague that he had observed a sign from Jupiter which indicated that the assembly would have to be postponed.60 Caesar’s supporters in the forum assaulted Bibulus as he tried to make the announcement, driving him away. While he was absent, the law was passed. The next day an outraged Bibulus demanded that the senate protest Caesar’s behavior and declare the law null and void. The senate did nothing. Unable to find any other way to stop Caesar’s controversial legislation and unable even to appear in the forum because Caesar used violent gangs to drive him out,

Bibulus went home and declared all remaining days of the year sacral days, thus technically making it impossible to transact any more public business. He reinforced his

obstruction by periodically issuing edicts announcing that he was watching the heavens.61

This did not stop Caesar either.

provisions of the law. Cicero was very hostile to Clodius, and he tended to make exaggerated claims about the destructiveness of Clodius’ legislation, so piercing the rhetoric has not been easy. The best reconstruction has been made by Sumner (1963), who argues that the Aelian law gave formal legality to the obstruction of legislative assemblies through obnuntiation. For other views and opinions, see Lange (1887), 2: 274-341; Valeton (1891); Greenidge (1893); McDonald (1929); Weinstock (1937); Balsdon (1957); Bleicken (1957b); Astin (1964); Linderski (1965); Mitchell (1986); Tatum (1999) 125-135.

60 Gelzer (1968), 74 suggests that Bibulus was trying to exercise his consular veto over Caesar’s law, but the text of Suetonius (Iul. 20.1) demonstrates that Bibulus was not trying to invoke his power of intercessio, but to obnuntiate: ‘Legem autem agraria promulgata obnuntiantem collegam armis Foro expulit . . . .’

61 Dio Cass. 38.6.5-6; Vell. Pat. 2.44.5; Plut. Pomp. 48; Caes. 14; Suet. Iul. 20.1; Cic. Fam. 20 (I.9).7., Vat. 21; see De Libero (1992), 62-63 and n. 51 for an extensive list of modern discussions. Dio reports that Bibulus made all remaining days of the year sacral days through a process known as indictio ferarium, whereby a magistrate set aside a certain number of days exclusively for religious purposes. Sulla tried to do this in 88 B.C to stop the legislation of Sulpicius. (Plut. Sulla 8.). Tatum (1999), 293 n. 87 suggests that Dio confused de caelo servasse with indictio ferarium and that Bibulus did not, in fact, try to make every day in the year a ferial day.

30 Bibulus eventually gave up attempts to transact any public business and during the summer of 59 withdrew to his home,62 all the while issuing edicts reminding the

Roman populace that he was watching the heavens and drawing attention to the fact that

Caesar was acting impiously because he was continuing to transact public business in the

face of religious prohibition. Bibulus was spectacularly unsuccessful at getting Caesar to

stop passing laws. He was, however, quite successful at undermining Caesar’s and

Pompey’s popularity, which, according to Cicero, plummeted, while Bibulus became the

toast of the town.63 He had gained a great advantage over Caesar and Pompey, and he and Caesar’s other enemies made every effort over the next few years to remind the

Romans of Caesar’s impious conduct. When Clodius was feuding with Caesar and

Pompey, he invited Bibulus to appear before an assembly to recount how Caesar’s legislation had been passed. Clodius took special care to get a statement from Bibulus

that Bibulus had been watching the heavens while Caesar was passing laws. Bibulus

gleefully obliged him.64

Bibulus thus did not make a public issue over Caesar’s pietas because he wanted

an immediate institutional victory. Unlike most examples of contested piety that we will

observe, in this case there was no institution he could turn to after the senate had refused

to intervene. Caesar’s willingness to use violence to drive Bibulus and his other

62 The chronology is problematic. Cic. Att. 36 (II.16).2 indicates Bibulus was willing to come to the forum in May, and App. B.Civ. 2.12, Plut. Pomp. 48.4, and Caes. 14.6 all suggest that his withdrawal from public activity occurred during the summer. Dio Cass. 38.6.5 and Suet. Iul. 20.1, however, suggest a much earlier retreat.

63 Cic. Att. 37 (II.17).2-3, Att. 40 (II.20).4, Att. 41(II.21).3-4.

64 Cic. Dom. 40, Har. resp. 48.

31 opponents out of the forum made it pointless to appeal directly to the Roman people or to

the priestly colleges, which were filled with the same senators who refused to challenge

Caesar. By withdrawing into his home Bibulus made it clear that he would not challenge

Caesar on the traditional political battlefields. Instead he was waging a war of attrition

against Caesar, hoping to keep Caesar’s impiety in the public eye all year as a means of destroying his political standing.65 By doing this he would not only give himself the

opportunity to wrest institutional control of Rome from Caesar’s hands, but he would also

stand a much better chance of persuading the senate and Roman people to support him.

Bibulus thus provides one of the most interesting examples of how the shapeless nature

of Roman religious authority made it easy to wage battles over piety. Even when every

institutional avenue was taken away from Bibulus, the importance of the Roman people

in deciding religious matters allowed him to contest Caesar’s piety in the court of public

opinion.

As the above examples show, senatorial authority over religious matters could be

stymied in a number of ways, including the activities of individual magistrates. Ti.

Gracchus’ position as consul and augur and his initial confidence that he had fulfilled

every religious obligation before conducting the election served as a counter to the

expertise of the haruspices, leaving the senate flummoxed until the conflict between the

two disciplinae was resolved. C. Flaminius used the prestige he acquired through his

65 The popularity of Caesar and Pompey was only restored by the Vettius affair, in which (so far as we can reconstruct from our sources) Caesar attracted sympathy by manufacturing evidence that his enemies were trying to have him and Pompey killed. That Caesar would resort to such desperate measures shows how low his popularity had fallen and how important he considered it to have it restored. Cic. Att. 44 (II.24).2- 5, Flacc. 96, Sest. 132, Vat. 24-26; Schol. Bob. 139 St., Suet. Iul. 17, 20; Plut. Luc. 42.7-8; App. B.Civ. 2.12; Dio Cass. 37.41.2-4, 38.9.2-4; McDermott (1949); Allen (1950); Taylor (1950); Seager (1965).

32 military victory to stymie attempts to punish him for not immediately obeying the

senate’s command to resign his consulship. He even won a rare triumph in the teeth of

senatorial opposition before he resigned the consulship. M. Bibulus created a religious

controversy and used a conflict over pietas to make Caesar and Pompey unpopular after

the senate refused to take action to overturn Caesar’s legislation. Thus the authority of magistrates could be used not only supplement but to challenge or replace the authority of the senate in religious disputes.

Vox Populi

The ‘deferred centre’ of religious authority in Rome allowed the assemblies to get involved in religious conflicts. We have seen that the senate was not a monolithic body and that inertia or conflict could prevent the senate from resolving a dispute or make it unwilling to deal with the problem. Should the senate fail to act or choose not to act, the parties in a dispute still had avenues through which to pursue their conflict. Since the assemblies, not the senate, had the power to legislate, the assemblies could resolve religious disputes, especially those involving questions of religious procedure, by passing a law. In addition, before the creation of standing quaestiones, the assemblies functioned as important law-courts. They had the power to punish those deemed guilty of religious infraction and could remit penalties imposed by the pontifex maximus. In effect, the assemblies were another body with authority over religious matters, and because of their legislative and judicial powers it was common for disputants to take their case to the

Roman people. Thus disputes over piety were not waged behind the closed doors away from popular view. They were virtually always public contests in which aggrieved

33 parties made their arguments to the assembled citizens. Thus religious conflicts were not waged only to win over one’s fellow aristocrats but to win over the entire citizen body. A

study of religious conflicts in republican Rome reveals that the popular assemblies were

as integral to the waging and resolution of those conflicts as the senate.

‘Popular assemblies’ were not just voting bodies in ancient Rome. The Romans had two kinds of meetings of the assembled populace: voting assemblies and contiones.

Magistrates summoned voting assemblies for two basic purposes: to elect magistrates

(and in some cases religious officials) and to pass legislation. Rome had four voting

assemblies: the comitia curiata, an archaic assembly which had authority over certain

religious issues, the comitia centuriata, which was composed of the entire citizen body

organized into voting groups based on wealth, the consilium plebis, which was composed

of plebeians organized into 35 tribes distributed geographically around Italy, and the

comitia tributa, the entire populus Romanus divided into the same 35 tribes. The

consilium plebis had the power to legislate after 287 B.C. and also served as a court of

law and a court of appeal until the creation of quaestiones ordinariae in the second

century.66

Voting assemblies did not allow for any discussion. In legislative assemblies

voters did not have the opportunity to debate laws or to amend bills. They met only to

decide yea or nay. Likewise, in electoral assemblies the candidates did not speak to the

voters. Discussion and debate were carried out in contiones. Contiones were assemblies

66 G.W. Botsford (1909) is still an excellent introduction to the function and role of the different types of assemblies in Republican Rome; see also Taylor (1966) and Mouritsen (2001). For a discussion of the existence of the comitia tributa, see Develin (1975).

34 at which the summoning magistrate could speak, or allow anyone else to speak, on

whatever topic he wanted before whoever cared to listen. Unlike voting assemblies,

which were scheduled in advance, contiones could meet on any day that allowed the transaction of public business; the only requirement was that a magistrate had to be present to introduce the speaker to the crowd. This was not a barrier to most aristocrats, who could get a friendly tribune or praetor to allow them to speak. Contiones were almost always held before meetings of legislative assemblies, because this allowed politicians in favor of and against proposed laws to woo the public.67 Contiones allowed

aristocrats locked in public contests to state their cases to the members of their

community. Given the judicial and legislative powers of the concilium plebis and the

comitia centuriata, public goodwill was important for any party in a dispute. This is true

in cases of contested piety, where the chief issue was whether an individual had met his

responsibilities to the gods. Contiones provided a forum for aggrieved aristocrats to

protest the decisions of the pontifex maximus, priestly colleges, or the senate. A Roman

politician could use the opportunity to speak to gain public support, making it easier for

him to pass a law or to win a judicial decision in a voting assembly. Thus, because

contiones provided a forum for debate and because voting assemblies were yet another

authority that could decide religious disputes, debates over religious practice very often

were waged before these assemblies.

Let us look at some specific examples in which an assembly played the crucial

role in settling the dispute. In 209 B.C. a vote was held to elect the chief officer of the

67 On contiones, see Botsford (1909), 139-151; Taylor (1966); 15-33; Lintott (1999), 42-43; Mouritsen (2001), 38-62.

35 archaic and obscure comitia curiata.68 The curio maximus, as this official was called, had mostly religious duties and was reckoned by the Romans as a sacerdos (priest). One of the candidates was C. Manilius Atellus, a plebeian aristocrat. A number of patricians protested because no plebeian had ever held the office. Manilius appealed to the tribunes of the people for support.69 At this point, the issue became a political football; no one who had the authority to give an opinion wanted to do so. The tribunes were often willing to intervene in disputes of this kind,70 and one would think that plebeian aristocrats would on principle be eager to defend the right of plebeian aristocrats to hold civic offices, but they referred the matter to the senate. The senate for its part decided not to intervene either, apparently recognizing the right of the populus Romanus to elect its own officials. In the complex relationship between senate and people, the senate had drawn a line and was reluctant to cross it. Instead, the senators let the election to go ahead and allowed the Roman voters to choose from among all possible candidates. As a result, Atellus became the first plebeian to be elected maximus curio.

The controversy over Atellus’ election shows how interactions between the various components of republican government made it possible for religious disputes to occur. One consequence of having so many groups and individuals with a role in settling

68 Livy, 27.8.1-3.

69 Livy uses the passive ‘the tribunes, having been appealed to’ (tribuni appellati ad senatum rem reiecerunt) which disguises who was doing the appealing, but it is highly unlikely that a group of patricians appealed for help to the tribunes of the plebs while trying to deny a plebeian’s right to stand for an office, so we must assume that it was Atellus or his allies who made the appeal.

70 See, for instance, Livy 27.8.4-10, the incident between Valerius Flaccus and P. Licinius that took place the same year. The tribunes’ support for Flaccus was material to his success; once the tribunes gave Flaccus their support he earned the support of senate and people, and Licinius’ objections came to naught.

36 disputes was that jurisdictional uncertainty, internal division, indifference, or, as in this case, institutional scrupulousness could make the senate or magistrates unable or unwilling to step in to settle issues. The tribunes and the senate both had tremendous moral force at their disposal and could have added their voices to the discussion. Since neither group chose to do so the matter devolved to the body that had the ultimate power to decide, a voting assembly.71 Thus popular opinion in the form of the voters within the comitia curiata resolved the problem.72 Atellus was elected, another barrier to plebeian participation in Roman civic life fell, and Roman religious practice continued to evolve.

In this case the comitia curiata had the final say because no other group wanted to

intervene.

If we assume that contiones and voting assemblies only had as much of a role in

Roman religious life as the senate and priestly colleges wanted them to have, we risk

misinterpreting the part played by the Roman people in Roman religion. The senate had

much influence over Roman religious affairs because its opinion carried great moral

weight with the Roman people. It was the Roman people, however, who had the power

71 Livy unfortunately does not tell us why the tribunes and senate were unwilling to intervene, but we can speculate. In 209 B.C. the Romans were engaged in a bitter war with Carthage. The tribunes perhaps did not wish to risk a serious conflict with the patricians while fighting the Carthaginians, particularly over an office whose role and influence in the state was so limited. The patricians and plebeians in the senate likewise seemed to have been unwilling to get into a dispute over the matter. The safest and easiest way to resolve the dispute was to kick the issue back to the comitia, and let the Roman populace decide whom to elect.

72 Livy does not specifically say that the comitia curiata elected the maximus curio, and neither Botsford (1909) nor Taylor (1966) makes note of the office. It seems likely to me, however, that the archaic comitia curiata would be the most likely assembly to elect its own officers. Given that the other assemblies played a much more important role in civic government, the responsibilities and influence of the maximus curio were probably quite small when compared, say, to a tribune or consul, which perhaps explains the reluctance of the senate and tribunes to intervene: they did not want to get involved with what may have been a tempest in a teapot.

37 to legislate, and for most of the republic the Roman people also acted as a judicial court or court of appeal. Because the will of the populus Romanus, as expressed in the voting assemblies, had the power to resolve religious conflicts, the opinion of the populus

Romanus was often a necessary component of a conflict’s resolution.

An example of this occurred during the tribunate of Gaius Gracchus (123-122

B.C). Although almost all of the Gracchan legislative program provoked controversy, the founding of the colony of Junonia on the site of Rome’s ancient enemy Carthage proved to be particularly contentious. Two-and-a-half decades earlier, when Scipio Aemilianus had conquered the city and sold its population into slavery, he had dedicated its site to the gods to prevent anyone else from settling on the area that had witnessed the birth of

Rome’s most bitter foes.73 Gracchus intended the fertile region to become a place where

Italy’s poor could get farms and a chance for prosperity. He would also receive the prestige accorded to those who founded colonies. His enemies struck at him by attacking the colony he had founded. According to Appian,74 after Gracchus had laid the foundations and had returned to Rome, reports reached Italy that wolves had torn up the colony’s boundary stones. The senate called in diviners to determine what the report signified for the Roman community. 75

There is some question as to which college of religious advisors the senate consulted. Since it is relevant to our discussion, we should spend some time examining

73 For a review of the sources, see Broughton, (1952), 1: 467.

74 B. Civ. 1.24.

75 Salmon (1970) 118-121.

38 the issues of debate. Appian describes these diviners as manteis, a Greek term that can refer either to augurs or haruspices. E. Rawson assumed that they are augurs,76 while

Thulin assumed that they were haruspices,77 but neither defended their assumption.

MacBain argued that the manteis were haruspices, because he believed the purview of the

augurs was limited only to events at meetings of the assembly or to the activities of

birds.78 Linderski’s rigorous study of augural activity has seriously undermined

MacBain’s arguments, since he shows that the scope of augural expertise was much broader than MacBain believed.79 Gargola has taken a different track, pointing out the state/action dichotomy that separated the spheres of activity of haruspices and augurs.

Augurs specialized in interpreting signs that indicated that the Jupiter had granted approval to an action, while haruspices interpreted prodigia, which indicated that something was wrong with the state of the relations between community and the gods.

Gargola concludes from this that the senate consulted the augurs, not the haruspices, to advise on the signs reported at Junonia.80

It is hard to see how Gargola drew this conclusion. It is true that the signs Appian

reported took place while the colony was going through the ritual process of being

founded, and that this might be taken as a sign that the action of founding the colony was at issue, but it is equally arguable that the senate was worried about the overall religious

76 Rawson (1974), 197.

77 Thulin (1909), 3:102.

78 MacBain (1982), 105.

79 Linderski (1986a), 2162-68.

80 Gargola (1995), 166 and n. 79, pp 243-244.

39 health of the republic and summoned the haruspices. The situation is analogous to that which occurred in 163; the rogator had dropped dead in the action of reporting an election result, but the senate did not choose to summon the augurs. Instead they summoned the haruspices, perceiving, apparently, that the issue involved the general state of Roman religion and not the specific action of conducting an election. The state/action dichotomy was probably hard to differentiate in many cases, leaving the senate free to choose from which college it would seek advice.

The senate’s behavior is consistent with the expiation of a prodigy.81 The summoning of the manteis was the first step in assessing whether the mysterious occurrences at Junonia were signs that something had ruptured the pax deorum. The diviners concluded that the reports from Africa indicated that a rupture had indeed occurred, and perhaps advised the senate on a proper form of expiation. At any rate, the senate concluded that the cause of the rupture was the founding of the colony and passed a consultum calling for the recall of the colonists and the abandonment of Junonia.

Gracchus became incensed, accused the senate (presumably at a contio) of lying about the omens, and prepared to challenge the senate’s attempt to repeal the law.82

The senate’s decision had a number of implications both political and religious.

The consultum was an assault on Gracchus’ pietas, since he was the chief supporter of the

81 This suggests the manteis were haruspices.

82 Plutarch’s narrative in C. Gracchus 11-13 differs slightly from Appian’s in B.Civ. 1.24. Plutarch reports more than just one ill-omened event and has Gracchus present at the colony while the evil omens occur. The two sources are not so different that they cannot be reconciled. See Gargola (1995), 163-174 for a discussion.

40 foundation of the colony, an action that had led to the rupture of the peace.83 If

Plutarch’s version is correct and the prodigia appeared while Gracchus was in Africa trying to establish the colony, then he was even more open to attack, since the reports indicated that he persisted in his efforts in the face of disturbing signs and portents. The senators might also have been defending the auctoritas of the senate as an institution and reminding their fellow citizens of the senate’s traditional role in approving legislation.

By choosing to recognize the reports from Junonia as prodigia and by concluding that the colony’s founding had broken the pax deorum, they were sending a pointed message to both Gracchus and the consilium plebis: the natural order of things required the senate to endorse a proposed law before the assembly could pass it, since the senate had the expertise to what was appropriate and what was not.84 From the point of view of many senators, the prodigia revealed that the consilium plebis had made a mistake because it had not consulted the senate. The senate was asking the plebeian assembly to concede it had erred by voting to repeal the law that allowed the colony to be founded.

So far it seems that the traditional view that all of the initiative rested in the hands of the senators is correct. On a closer look, however, the importance of the interaction between the senate and the people to resolve this matter is clear. The senate could not

83 Gracchus allowed Rubrius, a fellow tribune and political ally, to propose the law in the assembly; see Plut. C. Gracchus 9.2-10.1. Gracchus clearly had an important, if not the chief, role in getting the colony established since he was one of the triumvirs who established the colony. The sources also contextualize the struggle over the colony as an attempt by Gracchus’ enemies in the senate to undermine Gracchus, not Rubrius. See also Plut. C. Gracch. 10, where Plutarch uses the founding of Junonia to contrast Gracchus’ hands-on approach to overseeing his legislative program with Drusus’ decision to avoid getting himself involved with the administrative details of the laws he proposed. Plutarch thus saw the founding of Junonia as Gracchus’ law.

84 It is almost certain that the Lex Rubria was passed without a senatus consultum. Our sources do not specifically state this, but Plut. C. Gracch. 8-9 indicates the majority of senators were implacably hostile toward Gracchus’ legislative program, in particular to his plans for the founding of colonies.

41 simply impose its will on the Roman people. Though the senate had the right to decide

whether the report truly did constitute an ill-omen for the colony and the state, it alone

did not have the right to abrogate the law passed in the consilium plebis which had

authorized the founding of the colony. It had to persuade the assembly that its

interpretation was correct and convince the Roman public to repeal the law. It was by no

means certain that this would happen. According to Appian, Gracchus believed that he

had lost the struggle over the colony even before the assembly met.85 But this might have

been a case where the historian was influenced by Gracchus’ ultimate failure and put his

own thoughts into Gracchus’ head. It may have not have been at all obvious to Gracchus

that he was destined to lose, and he certainly decided to contest the matter before the

consilium plebis.86 Given his success at getting legislation passed in the teeth of fierce

senatorial opposition,87 he might have been able to prevail. With his popularity

apparently in decline, the struggle might seem to be an uphill one, but we should note the

senators did not wait for a vote in the consilium plebis to decide the contest. Instead, they

armed themselves and attacked Gracchus, killing him and many of his followers before a

vote could be taken. We should not allow the unorthodox political tactics of some of the

senators to divert us from the key point here: the senate as an institution did not have

final voice in the resolution of this matter. The fate of Junonia, and the decision as to whether the colony had to be abandoned in the face of an apparent prodigy, rested

85 App. B.Civ. 1.24.

86 If Appian correctly reports that Gracchus took armed followers to the consilium, we need not conclude that he was desperate and intended to use violence to intimidate the voters; he may have been worried about his opponents and taken arms in self-defense.

87 A convenient review of C. Gracchus’ legislation can be found in Stockton (1979), 114-161.

42 entirely with the populus Romanus. In cases where religious conflicts intersected with

(or could be resolved by) legislation, which occurred often given the inextricable link

between religious and political life in Rome, the vox populi had to be taken into account.

Magistrates and senate could apply their auctoritates to sway the will of the voters, but in

the end it was the assembly vote that settled the issue.

The vox populi could even be cultivated to find ways to prevent religious

conflicts, to refine the concept of pietas, and to help Roman religion evolve. As we saw

above, in 59 B.C. Julius Caesar provoked a major controversy when Bibulus tried to

obstruct his legislation on religious grounds. The senate did not step in to punish Caesar

when he used violence to stop an obnuntiatio, and it did not condemn Bibulus for

watching the heavens for the entire year. Thus because of senatorial inertia the question

of the legality of Caesar’s laws was not settled definitively. Bibulus’ conduct, however,

was addressed by a law of Clodius in 58 B.C. The assembly, at Clodius’ request,

modified the lex Aelia to limit the opportunities for a magistrate to obstruct the passing of

laws through obnuntiation.88 The law passed in 58 prevented someone from doing what

Bibulus had tried to do, use Roman religion as a means to shut down all public business

when one person felt aggrieved. The law demonstrates how legislation helped Roman

religious practice evolve to meet new challenges. The late republican politician faced

88 Cic. Red. sen. 11, Sest. 33, 56, Har. resp. 58, Vat. 18, Prov. cons. 45, Pis. 9; Asc. 8 C.; Dio Cass. 38.13.6. On what follows, see Tatum (1999), 125-133. The exact nature of the Clodian reform of the Aelian law is a controversial topic, because (as we saw earlier) the provisions of the Aelian law are themselves little understood and because our best source for the lex Clodia de obnuntiatione (or as Tatum calls it, the lex Clodia de agendo cum populo) is Cicero’s bitter invective. According to Cicero, Clodius destroyed completely the right of a magistrate to use obnuntiation as a means to prevent an assembly from voting, but Tatum’s thorough analysis demonstrates that the intention of the law was much narrower and was designed to prevent a magistrate from trying to completely shut down Roman political activity by retiring to his home and announcing that he was watching the heavens.

43 increasing demands for public reforms but also had to deal with a constitutional system set up to make it easy for a few aristocrats to prevent innovation. The conflict between

Bibulus and Caesar was partly political and partly religious, and Clodius’ solution to prevent politicians from using Bibulus’ tactics to stop legislation had consequences both political and religious. The law passed and was never repealed, but in republican Rome, of course, even the passage of a law did not necessarily end a contest over pietas. Cicero repeatedly accused Clodius and his allies of impiety for tampering with the Aelian law, which, he argued, undermined Roman religion.89

In 104 B.C. the tribune Cn. Domitius persuaded the consilium plebis to enact a law changing the process of selecting members for the main priestly colleges from cooptation by the members of the college to a vote of seventeen of the thirty-five tribes, the same method used to select the pontifex maximus. Apparently Domitius was passed over for membership in a priestly college, and in a fit of pique he proposed a revision in the selection process.90 Thereafter election to priestly office became a public contest among aristocratic candidates in much the same manner as election to an office on the cursus. The issue over how priests should be chosen was not settled by Domitius in 104, because Sulla repealed the law twenty-five years later, and Sulla’s resolution to the conflict did not last either, since in 63 B.C. a law of the tribune T. Labienus again made election the means of choosing priests.91 The controversy over the appropriate manner

89 Cic. Red. sen. 11, Har. resp. 58, Sest. 56, Vat. 18, Prov. cons. 46, Pis. 9-10.

90 Cic. Leg. Agr. 2.17.18; Vell. Pat. 2.12; Suet. Ner. 2; see Rawson (1974), Beard (1990), and Beard, North and Price (1998),136-137.

91 Dio Cass. 37.37. 44 of choosing members of a priestly college illustrates the complex interaction between

various elements in the Roman civic body and shows how some disputes could last for

years. It also shows how disputes could lead to an evolution of the Roman religious system. Often the resolution of a conflict led to the introduction of a new element into the way the Romans carried out the operation of the civic cult.

Thus the power to legislate made a voting assembly the ultimate stop for many religious disputes, but again the contests always involved interaction between aristocrat, senate, priest, and people. Only magistrates could summon voting assemblies, and the senate could exercise decisive influence by passing a consultum recommending for or against the passage of a law. Even a law might offer only a temporary resolution to a dispute, since any law could be repealed.

Contesting Pietas in the Courts

Trials provided another public forum for settling religious conflicts. Before the establishment of standing quaestiones, trials were held before a voting assembly, which would determine if the accused aristocrat had in fact committed some act of impiety that injured the Roman state. In the second century it became more common for a legislative assembly to establish a quaestio extraordinaria, a special court, to investigate and try

cases, including cases where the chief issue was religious. The outcome of these trials

was never predetermined; the defendants always put up a vigorous defense, arguing that

they had not committed acts of impiety. And as a consequence of the complex structure

of Roman civic institutions, which had many bodies that had authority over religious

affairs and many fora for discussion, the verdict often failed to end the contest. If an

45 aristocrat lost in the courts, he did not necessarily give up the struggle. He instead found

another venue in which to fight the battle.

It should not surprise us that the Romans contested pietas in the courts, since they

availed themselves of every other possible forum to conduct religious disputes. But one

aspect of Roman religious practice made it difficult for the Romans to use the courts as a

venue for charges of impiety: even though the civic cult was intimately connected with

the life and welfare of the entire community, the Romans did not consider impiety to be a

crime.

There was no law against impiety. The Romans reasoned that if humans acted in

such a way that they did not fulfill their obligations to the gods, then it was a matter for

the gods, not the state, to punish. This was generally true even if a magistrate or other

official entrusted with the care of the civic cult acted impiously. The Roman system was

set up so that if anyone made an error in ritual procedure, the problem could be solved

simply by repeating the ritual. The technical term for the repetition of flawed rites was

instauratio. Once a rite had been properly completed, the state and the community were off the hook. Even if an individual had deliberately committed an act of impiety, an inexpiable offense as far as the Romans were concerned, then it was not the responsibility of the state to punish him. The gods would take care of meting out justice.92 But the

Roman system scattered authority among various groups and individuals and emphasized

interaction between them to make decisions. As we have seen, one consequence of this was that conflict between the various groups occurred frequently, but another result was

92 For a discussion of the Roman attitude toward impiety and the correction of ritual error, see in particular Scheid (1981) but also Scheid (1999); Morgan (1990); Cohee (1994).

46 that the Roman system was very flexible. If an individual committed an arguable act of

impiety and consequently earned the hostility of enough groups and individuals with

auctoritas, then he could be certain someone would find a way to bring him to trial, even

if impiety itself was technically not illegal. Let us look at some examples.

In 249 B.C. P. Claudius Pulcher lost most of his fleet in a naval battle against the

Carthaginians. Reports spread that he had ignored the auspices before the battle.93 After his defeat he was brought up on charges of treason because he had jeopardized the safety of his fleet, and indirectly the whole community, by going into battle without receiving favorable auspices. Pulcher was absolved of the charge not by the populus Romanus but by Jupiter: thunder was heard in the middle of the trial, which vitiated the proceedings.94

This might have been taken as a sign that the gods reserved for themselves the right to judge Claudius, but Claudius’ opponents did not allow this to stop them. They brought him up on other charges, convicted him, and had a stiff fine imposed on him.95 Thus, the

contest over Claudius’ piety did not end with the first trial. Since there was no limit

except the patience of the assembly to the number of times a politician could be hauled up before the people and tried, the contest continued until Claudius’ career was ruined.

We see that in spite of the fact that impiety itself was not a crime, religious behavior was

93 Pulcher’s impiety was supposed to be especially egregious, since he was accused of getting angry and killing the birds when he could not get them to eat. Wiseman (1979) argues that many of the charges leveled against Pulcher were probably fabricated by his opponents, but for our purposes the validity of the charge is less relevant than the reaction to it.

94 A thunderclap heard during any public assembly was an auspicium oblativum and signified that Jupiter did not approve of the Romans’ conducting public business at that particular time. Thus the magistrate presiding over the assembly would have to dissolve the assembly until another day.

95 Cic. Div. 1.29, Nat. D. 2.7; Val. Max. 8.1 abs. 4; Schol Bob. 90 St.; Polybius 1.52.2-3; Linderski (1986a), 2176-2177 and ns. 107-111; Rosenstein (1990), 78-85 and ns. 80, 85.

47 so closely tied to public welfare that impiety among magistrates could and would be

punished judicially if the offense aroused enough public anger.

In 114 B.C. three Vestal virgins were accused of breaking their vow of chastity.

If a Vestal broke her vows, she endangered the entire community because the gods might punish not just the Vestals, but all Romans as a consequence of breaking the pax. Here was one circumstance in which the Romans did have a law for impious behavior: the law against incest (incestum) applied not only to sexual intercourse with family members but also to sexual intercourse with the Vestals.96 The Vestals were under the authority of the

pontifex maximus, and normal procedure in these cases required that the accused be tried

before the college of pontiffs. The college of pontiffs investigated the matter and condemned the virgin Aemilia, while acquitting the two others, Licinia and Marcia.

Popular opinion felt that the pontiffs had been too lenient and had therefore failed fully to

perform their religious duties. The tribune Sex. Peducaeus passed a law in the consilium

plebis that created a special tribunal (quaestio) to retry Licinia and Marcia and investigate

the Vestals. The tribunal convened with L. Cassius Longinus Ravilla as judge and

condemned Licinia, Marcia, and some others.97

This case shows how the various Roman institutions with authority over religious affairs could come into conflict. According to traditional practice, the pontiffs had the duty of overseeing the Vestals and the right to prosecute and punish them if they broke

their vow of chastity. In theory, the populus Romanus should have respected the

96 For a discussion of the crime of incestum, see Cornell (1981).

97 Cic. Nat D. 3.74, Brut. 122, 159, Inv. 1.80; Asc. 45-46 C.; Obseq. 37(97); Oros. 5.15; Plut. Quest. Rom. 83; Porphyrio ad. Hor. Sat. 1.6.30; Dio Cass. frag. 87.5; Macrob. Sat. 1.10.5; Millar (1986), 7.

48 auctoritas of the college. It was the pontiffs, after all, who had the expertise to judge the

Vestals, since it was they who had access to Roman sacred writings and knew the religious traditions passed down from their predecessors. Furthermore, the auctoritas of the college as a whole was bolstered by the auctoritas of its individual members, who were prominent members of Rome’s aristocracy. The pontifex maximus who had

presided over the first trial, for example, was L. Caecilius Metellus Dalmaticus, who had

been consul in 119 and was a triumphator.98 But the Roman system was not set up so

that one man alone or even a respected group of Roman nobles had final say in religious

decisions. When popular opinion decided that the college had made the wrong decision,

that they had not fulfilled the obligations of their college to the gods, then the matter was

not over, because the populus Romanus also had the right to intervene: all that was

needed was a magistrate to sense public opinion and propose a law setting up a special

quaestio to investigate the matter. Sex. Peducaeus saw which way the wind was blowing,

convened the consilium plebis, persuaded them to pass a law creating a special court, and

the contest continued in another venue. Like the case of Pulcher, procedure provided

guidelines but not absolutes. In Pulcher’s case impiety was not a crime, yet that did not

stop him from being tried and punished. In the case of the Vestals the traditional

apparatus for trying incestum had operated exactly as it was supposed to operate, but the

verdict was not accepted, and an extraordinary tribunal was created to decide the case.

98 Asc. 45 C.

49 Of course, even the second trial did not end the debate. Just as there were complaints that

the pontiffs had been too lenient, Ravilla was criticized for the harsh verdict of his jury.99

Impiety was also the central issue of the trial of M. Aemilius Scaurus in 104 B.C.

A year earlier the Romans had suffered a disastrous defeat against the Teutones and the

Cimbri. Cn. Domitius Ahenobarbus, tr.pl. 104, the same man whose inability to get

coopted into a priestly college drove him to propose a law that changed the procedure for

selecting priests,100 accused M. Aemilius Scaurus of impiety because he had improperly

carried out the rites to the Penates at Lanuvium.101 Ahenobarbus was apparently trying to

link the ritual error to the defeat, arguing that Scaurus had caused a breach in the pax

deorum that led to the military disaster.102 At first glance the issues raised in this trial

seem identical to those raised in the trial of Pulcher in 249, but there are two very

significant differences. Pulcher was in military command when he ignored the auspices,

while Scaurus was nowhere near the battlefield and had no military responsibilities that

year. Second, Pulcher was alleged to have willfully and deliberately violated Roman

religious procedure, while Scaurus’ error seems to have been accidental.103 The second

fact was important for Scaurus personally, because, as we have seen, while the

99 Asc. 45 C.; Val. Max. 3.7.9.

100 See above, pp. 44-45.

101 Cic. Deiot. 31; Asc. 21 C.; Scheid (1981), 125; Millar (1986), 6.

102 Though the sources do not explicitly link the prosecution with the defeat, the timing is very suggestive. See Rosenstein (1990), 62 n. 30.

103 Even in our most detailed account of the trial, Asc. 21C., there is no evidence that Domitius accused Scaurus of deliberately violating religious procedure. Our sources for the trial, however, are few in number and short in length, so it is possible Domitius made such a charge.

50 community could always repeat a flawed ritual and restore peace with the gods, an

individual could never redeem an intentional act of impiety.104 The first had tremendous

implications for the community as a whole, since every year the Romans carried out a

large number of rites to the gods, and many members of the aristocracy played a part in

those rites. Had accusations such as those made by Domitius become a common feature

of Roman politics they might have seriously unbalanced the state, because every military

defeat would become a political free-for-all as Roman politicians exploited the

opportunity to blame their most bitter rivals by making hard-to-refute charges of impiety.105 The reason that trials such as Scaurus’ were rare was not because Roman

aristocrats were reluctant to make charges of impiety but because Roman juries were

reluctant to convict. The decade from 110-100 B.C. represented a low point in senatorial

prestige and control over religious affairs,106 as is demonstrated (among other things) by

the Lex Domitia of 104 which took the right to choose priests away from the priestly

colleges and gave it to the people. This fact and the fact that the Romans were

demoralized by a major military defeat might have proved disastrous for Scaurus, but

even with all of the cards stacked his way Domitius could not convict his opponent.107

Given the reluctance of the Roman populace to convict when the political environment

was most favorable to prosecutions, we should not be surprised that (so far as we can tell

104 Cic. Leg. 1.40; Scheid (1999), 335.

105 Rosenstein (1990), 61-62 and n. 30, 161.

106 Rawson (1974), 209.

107 The vote however, was very close; According to Asc. 21 C., had three tribes swung the other way Scaurus would have been convicted.

51 from our sources) there were no other attempts to link a military defeat with a remote

ritual error to create a criminal case.

Though the trial of Scaurus was unusual, it does provide a useful illustration of

how an aristocrat might initiate a contest over pietas. Domitius was Scaurus’ opponent; according to Asconius, Domitius carried a grudge against Scaurus because Scaurus had obstructed his co-optation into a priestly college.108 Domitius was not the first Roman to

use the public stage to avenge a personal slight.109 We should not be surprised that

Domitius chose to make Scaurus’ religious behavior the point of attack; as we have seen,

religious behavior was as much a part of a noble’s civic life as his speeches in the senate

or his conduct as a magistrate. When Domitius found that he could make a plausible case

that Scaurus had incorrectly performed the rites to the Penates and that this had

endangered the state, he did so. The forum for the dispute (a trial for impiety) was thus a

relatively uncommon one, but the issue being disputed was not. Like other aristocrats

Domitius desired to achieve honor and influence in his community by becoming a

member of a priestly college, but found himself blocked by an opponent. When he found

an opportunity to pay his enemy back, he took it by accusing his impiety of harming the

community. As a result, religious issues became a topic for earnest debate. This hardly

108 Asc. 21 C. Exactly what priestly college Scaurus belonged to has been the subject of intense debate. Asconius reports that Scaurus was an augur, but this seems to be contradicted by Suet. Ner. 2.1, who states that Domitius had a grudge against the college of pontiffs because he was not coopted into that college. This suggests that Scaurus was a pontiff, because it was very rare for an aristocrat to be a member of two priestly colleges, and Asconius states the motive for prosecuting Scaurus was his anger at not being coopted. For a review of the problem, see Marshall (1985), 129-132. See Gruen (1964), 107-108 and Epstein (1987), 103-104 on the personal and political issues involved in the trial.

109 To see exactly how far Romans carried personal grudges into the public sphere, see chapters two through five, when we review the rivalry between Clodius and Cicero. 52 illustrates that the civic cult was corrupt or decayed; in fact, the interest of the citizens in

the health of the cult indicates just the opposite.

Adapting to Change: The Flexibility of Roman Ritual

The trial of Scaurus illustrates one of the reasons why the Romans got into

political disputes over whether obligations to the gods had been fulfilled: Roman ritual

procedure could be complex and any error could vitiate the ritual. If a ritual were

improperly performed, the Romans had not carried out their obligations to the gods, and

the binding agreement between the Romans and their gods was suspended until they

correctly performed the rite.

It was not always clear to the Romans what constituted proper religious procedure

and thus what steps had to be taken to ensure that the Roman community fulfilled its

religious obligations. The Romans could not consult a group of religious experts who

had knowledge of religious texts that clearly explicated proper religious procedure. Even

though the Romans had religious experts and sacred texts, from what we can tell about

the disputes that arose, much of what constituted religious expertise was knowledge of

formulae and custom, proper application of which was a matter open to interpretation.

As we shall see, even those presumably most familiar with proper religious procedure

often found their rulings challenged. A characteristic yet often overlooked feature of

Roman ritual was that it was not a fossil, engraved in stone and calcified with age.

Roman religious procedure could evolve, and, in its own way, it was flexible and malleable. This flexibility had its advantages, but it also led to uncertainty, and where

53 there was uncertainty there was debate over which actions were pious and which were

not.

There is a further point of Roman religious practice that encouraged conflict but enhanced the flexibility of the Roman religious system. There was no recognized hierarchy in Roman religion, no place which provided a final court for religious conflicts that the Vatican offered to medieval Catholicism, no place where, as Harry Truman put it,

‘the buck stopped’. The ‘deferred centre’ of religious authority in Rome helped Roman religion evolve because many different individuals or groups had the right to make judgment calls in the face of never-before-seen circumstances; this flexibility allowed the

Romans to adapt their religious practices to deal with new problems.

A famous anecdote in Livy illustrates this flexibility. In 293 B.C. L. Papirius

Cursor was preparing for a battle with the Samnites. The story has it that before battle he ordered his pullarii to take auspicia ex tripudiis. The chief pullarius reported to him that the chickens had eaten and thus the auspices were favorable. In fact, the chickens had refused to eat. Some of the cavalry overheard the pullarii bickering about the auspices and reported the dispute to the consul’s nephew, who informed the consul. Calling the battle off at the last moment would have been difficult if not impossible, since the

Samnites might have easily attacked and beaten his disorganized army. Even if the

Samnites had refused battle, standing down just before combat would have had dire consequences for Roman morale. Papirius decided to risk battle in spite of the apparent problem, much in the same way Flaminius (as we have seen) risked battle in 223 in spite of having been made consul in a vitiated election. Papirius, so the story goes, chose to

54 regard the announcement as a sign of favorable auspices for the state and declared to the

bystanders that since the auspices had been reported favorably to him in his office as

commander of the Roman army and representative of the Roman people, the gods were

favorably inclined to his and the army’s actions. The negative auspices obtained when

the chickens refused to eat redounded only to the pullarius, who had seen the chickens’

behavior. To see that the gods gained an opportunity to vent their wrath on the pullarius,

Papirius placed him in the front of the battle line, where he was killed by a random

javelin.110

Papirius Cursor was playing with fire. Had he lost the battle there would have been an outcry because he had knowingly ignored the auspices and had lost the battle.

We have already seen what happened to P. Claudius Pulcher, cos. 249, when he ignored

the auspices and returned home; his fellow citizens ignored the fact that impiety was not

a crime. Even if Cursor had not faced a criminal prosecution his public reputation would have been destroyed because his impiety had placed the lives of his fellow citizens in danger. But the Romans did not allow their ritual procedures to hamstring their military actions, and Cursor’s victory—and the death of the conveniently placed pullarius—could be used as evidence that Cursor’s interpretation was correct.111

Of course, one may legitimately question the historicity of Livy’s account. The

story about the pullarius does not appear in the other, admittedly brief, accounts of the

110 Livy 10.40.3-14; Levene (1993), 237-239; Linderski (1995b), 608-619.

111 Livy 10.40.11; Rosenstein (1990), 80 n. 84.

55 battle.112 Furthermore, as Levene points out, Livy’s account of the battle of Aquilonia juxtaposed the apparent impiety of the Romans with the apparent piety of the Samnites, but the moral of the story was that appearances were deceiving: the Samnite piety was false while Papirius’ piety was genuine.113 The contrast seems too pat, and it is easy to believe that Livy’s account has been fictionalized. Yet the story itself illustrates the main point of our argument. The Roman attitude corresponded to Papirius’: the Romans could

be flexible in how they fulfilled their obligations to the gods. Papirius asserted that he

was acting piously in fighting in spite of apparently unfavorable auspices, he reinforced

his assertion by a vow to Jupiter,114 and his victory showed that he correctly assessed his

responsibilities to the gods and had therefore acted piously.

A similarly flexible attitude can be seen in the creation and elimination of dies

atri, ‘black days,’ which were days on which some military disaster had befallen the

Roman republic or days that were otherwise inauspicious. On these days battle was

normally avoided, since knowingly fighting on them was an inexpiable religious

offense.115 In 69 B.C. L. Licinius Lucullus was about to go into battle against the forces

of Mithridates when someone pointed out that the day was ater because it was the

anniversary of the disastrous battle at Arausio against the Gauls. Lucullus replied that he

112 Neither Val. Max. 7.2.5 nor Oros. 3.22.3-4 mentions the problem with the auspices. See Levene (1993), 238-239.

113 Levene (1993), 237-238.

114 Livy 10.42.7, Pliny H.N. 14.91.

115 Rosenstein (1990), 81 n. 86, 84.

56 would win a victory that would erase the black mark, and he went on to do so.116 Had he

lost, Lucullus would have been guilty of impiety, but his victory rendered any charge of impiety pointless, since the victory itself indicated that Jupiter was favorable to Lucullus’

actions.

Questions over proper religious procedure did not just arise in battles. In 200

B.C., only a year after the Romans had finally defeated Hannibal in North Africa and put

an end to the Second Punic War, the Roman senate wished to punish King Philip V of

Macedon for allying with Carthage in the moment of Rome’s greatest desperation.

Before entering into such a dangerous endeavor, the community, embodied in the consul

P. Sulpicius Galba, made a vow to Jupiter of games and an indefinite sum of money to

ensure their success. P. Licinius Crassus Dives, the pontifex maximus, who should have

been the man who had the most authoritative opinion, ordered Sulpicius to make another

vow, this time with a specific sum of money because otherwise the consul would not be

able to fulfill the exact specifications of the vow.117 According to Livy, Sulpicius was impressed by force of the argument and by the standing of its maker, but he was directed

(presumably by the senate) to appeal the ruling to the entire college of pontiffs. The

pontiffs met and decided that an indefinite sum was acceptable, so Sulpicius made a vow

promising games and a sum to be decided by the senate at the time when the vow was

fulfilled.118

116 Plut. Luc. 27.

117 ‘quod si factum esset (if the vow were made without specifying an exact sum), votum rite solvi non posse.’ Livy 31.9.7.

118 Livy 31.9.5-10; Briscoe (1973), 79-82; North (1976), 6-7.

57 The question over unspecified vows illustrates the complex nature of religious

decision-making in Rome. Sulpicius’ vow was novel, demonstrating again the flexibility

of the Roman system—Sulpicius reckoned that Jupiter would accept an I.O.U., given the

poor state of Roman finances at the end of the Second Punic War. He was moving onto

shaky ground, since he was acting without the weight of religious tradition to support

him. Livy asserts that such a vow was without precedent.119 Even though an indefinite

vow had never been made before, in the absence of any hard-and-fast rule to the contrary

Sulpicius concluded that necessity compelled and justified a well-meaning change in

procedure. Crassus challenged the validity of Sulpicius’ vow, relying on his own

knowledge of religious affairs. The issue of novelty gave him grounds to intervene, but

more than a firm respect for tradition may have impelled Crassus to object. He may have

believed that maintaining a proper relationship with Jupiter required the Romans to spell

out in exact terms the Romans’ side of the bargain, otherwise Jupiter might find the room

to wiggle out of the agreement.120 Much of Roman civic religion centered on the

reciprocal relationship between the community and the gods. The Romans believed that if they did their part, the gods would reciprocate. If the Romans failed to maintain their obligations then the agreement was null and void, and the favor of the gods could be withdrawn, with disastrous consequences to the community.121 Crassus could reasonably

argue that Sulpicius’ new formula would not bind the god, since the Roman side of the

agreement was vague. Though the financially strapped Romans might be able to justify

119 ‘Octiens ante ludi magni de certa pecunia voti erant; hi prima de incerta.’ Livy 31.9.10.

120 Sage (1935), 28 n. 1.

121 Scheid (1998), 125-126. 58 to themselves a delay in specifying how much they would offer the god, the potential danger was, so far as Crassus was concerned, too great to warrant tampering with the formula for making a vow.

Crassus’ authority as pontifex maximus and the weight of Roman tradition stood behind his opinion, yet that did not prevent his opinion from being challenged. Another authority existed, the authority of the full college of pontiffs, which could offer a ruling that the senate could use to overrule the supreme pontiff. Here again we see the ‘deferred centre’ that divided authority among and prevented one person from having too much influence over religious affairs. The voice of the pontifex maximus carried great weight but it was not absolute. Because religious authority rested in so many different groups or individuals (in this case, the consul, the pontifex maximus, the college of pontiffs, and the senate all had a say in the process), conflicts over whether proper procedures had been carried out would arise in novel or unprecedented situations, since it was at these moments when the various groups who had authority over religious matters would most frequently find themselves at a loss about how to act.

We also see again that the flexibility of the Roman system led to disputes over what constituted proper religious procedure (and thus what constituted pious behavior).

Had this been a simple question of ‘are we going to carry out this vow the same way we have always done it?’, then Crassus’ ruling would be virtually impossible to challenge.

But the Roman system did not work that way. Having so many voices making decisions, with the consequent discussions and conflicts, left the door open for Roman religion to evolve. Roman religious procedure was resistant to change, but the structure of Roman

59 religion, with its groups of competing individuals debating over what constituted proper

behavior toward the gods, meant that Roman religion was not and could not be static.

Unfortunately we do not know what arguments or precedents the pontiffs cited when they decided to make a procedural change by allowing consuls to make vows of indefinite amounts for the ludi magni, but they had no problem with allowing the innovation. Thus

resolving questions of religious procedure could lead to new ideas and solutions for

religious problems.

Shades of Gray

The flexibility of Roman religion blurred the line between pious and impious behavior. As a result, a Roman would sometimes act in a way that seemed proper to him but impious to many of his fellow citizens; contests over pietas then arose. Recall from

the introduction to this chapter the unfortunate Q. Fulvius Flaccus, who wanted to build

as beautiful a temple as possible to fulfill of a vow and who from completely pious

motives acted in such a way that he outraged his fellow citizens. Flaccus was as knowledgeable on religious issues as anyone, given his membership in a priestly college

and his long career on the cursus honorum, but even his experience could not prevent him

from making a huge blunder that wrecked his public reputation. Had the line between

piety and impiety been clear-cut Flaccus would never have risked the public humiliation

that he ultimately suffered, and he would have found another source of marble for his

temple’s roof.

A similar incident occurred more than thirty years before Flaccus ripped the roof

off of the temple to Juno in Bruttium. In 205 B.C, during the Second Punic War, P.

60 Scipio Africanus and the Romans captured the city of Locri in Southern Italy, taking the

city from Hannibal and a Carthaginian garrison. He garrisoned the city with a force

commanded by his legate, Q. Pleminius, and then left for Sicily to prepare for an invasion

of North Africa. Pleminius turned out to be a brutal overlord, and among his outrages was the plunder of the treasury of the temple of Proserpina. After two groups of Roman soldiers got into a squabble and Pleminius inflicted a serious punishment on two Roman military tribunes, a vexed Scipio returned to Italy to deal with the problem. There he was met with a chorus of protests over Pleminius’ conduct. The Locrians informed Scipio of

Pleminius’ crimes against them, but Scipio ignored them. He listened to the grievances of the two military tribunes punished by Pleminius, decided they deserved punishment, and ordered them confined and sent to Rome for trial. He then returned to Sicily.122

Pleminius does not seem to have thought that there was anything wrong with plundering the temple of Proserpina. From the Roman point of view the Locrians did not make particularly sympathetic plaintiffs, since they had revolted from Rome and had gone over to the Carthaginians. There were probably many in Rome who would not have taken their complaints seriously. The Locrian cult was not, after all, part of the Roman civic cult. But the Locrians sent envoys to the senate and, according to Livy’s account, made the plundering of the temple to Proserpina the centerpiece of their complaint against Pleminius and Scipio.123

122 Livy 29.8.8-29.9.9; App. Han. 55; Diod. Sic. 27.4; Val. Max. 1.1.12; Dio Cass. fr. 57.62; Zon. 9.11; Toynbee (1965), 2:613-621.

123 Livy 29.18.1-20.

61 The Romans might have treated the complaints of the Locrians with slight concern, but, according to Livy, there was a larger debate shaping up in the senate. The complaints of the Locrians found the most enthusiastic hearers among those most interested in derailing Scipio’s career. Deciding whether Plemenius had committed an impious act when he plundered the temple of Proserpina became tied up with a judgment

of Scipio’s strategy and even of his fitness to command. Livy reports that Q. Fabius

Maximus in particular argued that Scipio’s handling of this affair reflected a pattern of

irresponsible behavior that demonstrated his unfitness to lead the Romans against

Carthage.124 The debate between Scipio’s opponents and supporters grew quite heated.125

Ultimately a compromise was reached between those calling for Scipio’s head and those

defending him. An investigative committee was appointed to look into the matter, and

the opinion of the college of pontiffs was sought. Not only Pleminius’ pietas was in

question, but also Scipio’s, since the committee had explicit instructions to investigate

whether Pleminius acted with Scipio’s knowledge and consent,126 implying that had

Scipio known and approved of (among other things) the pillaging of the temple, he would

have been held responsible. Ultimately the investigators judged that Pleminius’ actions

were both impious and illegal but chose to exonerate Scipio. At the advice of the college

124 Livy 29.19.1-13.

125 Livy 29.19.10.

126 Livy 29.20.5.

62 of pontiffs the senate made restitution and expiated the sacrilege, and Pleminius was put on trial but died before the verdict.127

The process of ascertaining whether or not Pleminius committed an act of impiety

illustrates several points we have been discussing. It shows that contests over pietas were

closely linked with other civic issues. In this case, deciding the issue of Pleminius’ impiety was bound together with a political issue—the competition between Scipio and

Fabius for prominence in the community—and a military one—Scipio’s fitness as a commander and the appropriateness of his strategy for defeating the Carthaginians.

Scipio’s opponents in the senate, particularly Fabius, tried to exploit the plunder of the

Locrian temple to check Scipio’s rapid ascent to the top of Roman public life. They also tried to use it as a pretext to remove Scipio as commander in Sicily—the investigating commission had the power to call Scipio out of Sicily if there was evidence that he condoned Pleminius’ brutal behavior.128 This is not an example of religion in decline; it

is an example of the Roman religious system at work. All civic activity, including

warfare, depended on the proper operation of the civic cult, so it was important for the

senate to make certain that the pax deorum was maintained and any impiety expiated.

And since the political system encouraged competition among aristocrats, it was

inevitable that once Scipio’s opponents saw a way to use the issue to damage his career

they would do so.129 We cannot see this as ‘politicization’ of religion—implying that

127 Livy 29.20.1-29.22.10; Val. Max. 1.1.21; Levene (1993), 72-73.

128 Livy 29.20.11.

129 Scipio’s opponents did not let this issue die. In 187 B.C., when his enemies were preparing to bring him up on charges of taking bribes while acting as his brother’s legate during the Syrian War (193-188 B.C.), 63 religion was being dragged into a sphere that it did not belong. All discussion of the civic

cult was inherently political.

Second, we again see how many civic institutions had a role in deciding questions

of piety and impiety. To determine whether Pleminius had committed an impious act, the

senate, the college of pontiffs, an assembly (functioning as a jury), individual magistrates,

and a special commission of magistrates all had a role in the decision. We also see how

these various individuals and groups could work at cross-purposes and come to different

conclusions about what constituted impiety. Pleminius had one interpretation, while the

senate took the opposite view. And though on one level the senate resolved the issue

when it took steps to expiate impiety and restore all lost funds to the temple, on another

level the contest continued. Pleminius still had another venue to defend himself and

another place to argue that he had not committed any impieties: before the assembly that

was trying him. Furthermore, if we can accept Livy’s reconstruction of events, he was

beginning to make and win a case for acquittal.130

Which brings us to the final point: the line between pious and impious behavior

was not always evident, even in apparently obvious cases such as Pleminius. John Scheid

uses the plunder of the Locrian temple as an example of deliberate and therefore

inexpiable impiety.131 This presents a problem for anyone trying to understand what

Pleminius was doing, since, as Scheid also points out, there were socially imposed

they tried to undermine his public standing by reminding their fellow citizens of Pleminius’ conduct. Livy 38.51.1.

130 Livy 29.22.7-9; Val. Max. 1.1.21.

131 Scheid (1981), 139-140; (1999), 335-336; (2001), 37-39.

64 punitive sanctions for the willfully impious,132 sanctions of which Pleminius would

certainly have been aware. The best explanation remains that it was not obvious to

Pleminius that his fellow citizens would interpret the plunder of the Locrian temple as

impious. The Locrians were enemies, the Locrian cult was not part of the Roman civic

cult, and an argument could be made that Pleminius’ plunder had not at all affected the

pax deorum. Certain senators seemed willing to include the plunder of the Locrian

temple among the list of things that were impious. Two groups of people saw the same

incident in completely different ways.

An interesting parallel occurred nearly two decades later, while the Romans were

involved in fighting in Greece. M. Fulvius Nobilior, consul in 189 B.C., won victories

over the Aetolians and Cephallenians and attacked Ambracia. He returned in triumph

two years later.133 One of the consuls the year of his return was M. Aemilius Lepidus,

whose relationship with Nobilior Livy characterizes as one of inimicitia because Lepidus

blamed Nobilior for a two-year delay in reaching the consulship.134 According to Livy,

before Nobilior had returned, Lepidus met with Ambraciot ambassadors, who were already hostile toward Nobilior because of his treatment of their country. Lepidus gave them a list of charges that they should level against Nobilior before the senate, including illegally making war on them, plundering their city, carrying their people off into slavery,

132 Scheid (1999), 343-347.

133 For the sources for Nobilior’s consulship, see Broughton (1951), 1:360; for sources on his return and triumph, see Broughton (1951), 1:369.

134 ‘Inimicitiae inter M. Fulvium et M. Aemilium consulem erant, et super cetera Aemilius serius biennio se consulem factum M. Fulvii opera ducebat.’ Livy 38.43.1. For the sources on Lepidus’ consulship, see Broughton (1951) 1:367-368.

65 and, the gravest charge, plundering the Ambraciot temples.135 This pattern is familiar. A

Roman politician has a grudge against a rival, and observes his public behavior. When

he finds evidence of impiety, he takes steps to make this evidence public, forcing his rival

to defend his behavior. And thus, a contest over piety began.

Nobilior was not present to defend himself, but Aemilius’ fellow consul C.

Flaminius, Nobilior’s ally, defended the absent proconsul. Livy put an interesting speech

into his mouth. Flaminius reminded the senators that this kind of charge was not new,

since the Syracusans had made the same complaint against M. Marcellus, as had the

Campanians against Q. Fulvius Flaccus. He also pointed out that similar charges might be

leveled against T. Quinctius Flamininus by King Philip of Macedon, by Antochus III

against the generals who defeated him, and even against Fulvius Nobilior by the

Aetolians and Cephallenians, two other peoples whom Nobilior had defeated.136 The implication was clear: stripping the ornamentation from the temples of defeated enemies was standard procedure, since such plunder rightfully belonged to the conquerors. Not every temple plundering should be treated as an impiety.137

135 Livy 38.43.2-5.

136 Livy 38.43. 7-13.

137 Flaminius’ speech was probably a fabrication; we cannot know the extent to which it resembled anything actually said in the senate. It is within the realm of possibility, in fact, that the list of charges leveled by Aemilius was also fictionalized, though I tend to doubt that the conflict between Aemilius and Flaminius was entirely a fabrication. The potential fictionalization of the incident does not materially affect the argument. Livy seems to presume that the accusation of temple-plundering might be made in the course of a political squabble, and in fact, that it might be regarded as the most serious charge that could be leveled at a Roman commander. Furthermore, he presumes that a defensible argument could be made for that conduct, namely, that in times of war plundering the temples of an enemy was acceptable. Livy’s text shows that a Roman reader would find it plausible that the propriety of temple-plundering could become an issue in a political contest.

66 Other examples could be mentioned. In 106 B.C. Q. Servilius Caepio, the consul,

took the sacred treasures from Tolosa in Gaul. There was an outcry over this, not

because he had taken the treasures, but because the treasure mysteriously disappeared on

its way to Rome.138 Caepio as proconsul lost his army the next year at Arausio and was

put on trial in 103, convicted, and went into exile. The Romans did not seem to be

unhappy with Caepio because he plundered Tolosa but because the plunder never made it

into the treasury and, of course, because he had suffered a spectacular defeat. In 87 B.C.,

L. Cornelius Sulla gave orders that the treasures of Apollo at Delphi be seized and melted

down. When it was reported that a mysterious lyre music had been heard in the temple

and was being interpreted as a sign of the god’s anger, Sulla responded that it was

actually a sign of the god’s joy at being able to hand his treasury over to Sulla.139

Which brings us back to Pleminius: since it was not always an impious act to plunder the temples of conquered peoples, why was Pleminius so harshly treated for his robbery of the temple of Proserpina at Locri? There appear to be a number features that distinguish this particular incident. Locri, though previously a Carthaginian ally, had surrendered to the Romans, putting them under Roman protection. Romans prided themselves on treating well peoples who surrendered.140 In addition, Pleminius was not a

138 Dio Cass. frag. 90; Strabo 4.1.13; Justin 32.3.10; Oros. 5.15.

139 Plut., Sull.12; App. Mithr. 8.54.; Diod. Sic. 38/39.7. Keaveny (1984), 58-59, argues that we need not see this as a cruel jest on Sulla’s part, since Sulla might have genuinely believed that he was receiving the god’s support. Keaveny analyzes Sulla’s actions in terms of belief, which is problematic since it is hard to for us to know exactly what Sulla believed, but the point here is that plundering temple treasures need not inevitably seen as impious.

140 As the admonition of Anchises’ shade to his son illustrates: ‘tu regere imperio populos, Romane, memento (hae tibi erunt artes), pacisque imponere morem, parcere subiectis et debellare superbos.’ Verg. Aen. 6.851-853 67 commander; he was only a legate. He was thus a less formidable target for accusation,

since he had less prestige and thus fewer supporters. His patron Scipio was away from

Rome, and thus unable to defend him in the senate. His outrages extended not just to the

conquered peoples but also to Roman citizens. The temple itself was in Italy, not Greece,

and thus, perhaps, more likely to be perceived by the Romans as within their purview.141

All of these combined to make Pleminius’ situation more precarious than that of Fulvius

Nobilior. Yet even though there were a number of differences between the cases of

Pleminius and Nobilior, the similarities between them are striking. In both cases political rivalry played an important part in creating the dispute; and in both cases the line between piety and impiety was not clear-cut; each side in the dispute could present an arguable defense for their actions. Finally the differences in how the cases were resolved again illustrates that the line between impious and pious behavior was blurry. In one situation temple-plundering was acceptable, in another it was not. But Pleminius did not seem to be able to see the line dividing impious behavior from acceptable behavior.

Bibulus and Caesar

The rivalry between Caesar and Bibulus in 59 B.C. also demonstrates the blurred line between piety and impiety. Even though there is no doubt that Caesar had passed

141 In 200 B.C. the temple to Proserpina was robbed again. According to Livy the senate was angered that the example of Pleminius had not deterred plunderers, so they ordered an investigation and an expiation modeled after the procedure established in its investigation of Pleminius three years earlier. Those responsible were found out and brought to Rome for trial. Livy 31.12.1-5; 31.13.1; Toynbee (1965), 2:621- 622; Briscoe (1973), 86-87. The senate’s reaction clearly indicates that it perceived that it had the right to investigate and bring to Rome violators of a sanctuary far to the south of the city. In 186 B.C., the Bacchanalian scandal broke out. Gruen (1990b) argued that the senate’s strong response, including an investigation of Bacchanalian activity throughout the Italian peninsula, was an attempt to demonstrate Rome’s hegemony of the peninsula by showing that it could intervene in religious matters throughout Italy.

68 legislation while his colleague was watching the heavens, there has been some debate

over whether Caesar actually violated religious law and thus whether he acted impiously.

One view holds that through de caelo servare, Bibulus had managed to render all of

Caesar’s legislation technically invalid,142 but Linderski has established as well as anyone

possibly could given our evidence that a magistrate had to obnuntiate in person, not

through a published announcement, so by preventing Bibulus from reaching the forum

Caesar was able to escape a violation of religious law.143

For our purposes, it is not relevant who was right or wrong. What is significant is

that it was not absolutely certain to the contemporaries of Bibulus and Caesar who was

right and who was wrong,144 and this very uncertainty helped fuel the dispute between

them. Caesar could argue that he was not in violation of Roman religious law because

Bibulus had not presented him with the announcement that something portentous had

been seen, and, of course, Caesar could use the authority of his priestly office to his

advantage.145 Caesar’s enemies did not let technicalities slow them down: they argued

that he was violating Roman law and his legislation was therefore invalid.146 Bibulus’

tactics make sense only if large numbers of his contemporaries, even aristocrats, were

142 E.g. Seager (2002), 87.

143 Linderski (1965), 425-426; See also Meier (1980), 192 and n. 437 and Mitchell (1986), 175. De Libero (1992) 62-63 and n.51, however, challenges Linderski’s argument that an obnuntiation was binding only if delivered in person.

144 Tatum (1999), 131-132.

145 Unfortunately our sources do not give us Caesar’s defense for his actions. However, as pontifex maximus he could claim to possess authority over and knowledge about religious affairs.

146 Cic. Dom. 40, Har. resp. 48.

69 unaware (or unconcerned) that while Caesar could be accused of passing legislation per

vim, he could not be accused of impiety, because Bibulus had failed to carry out the

proper procedure for announcing that he had seen a sign: he had not presented it in person

to the presiding magistrate.147 Bibulus was either unaware of this technicality, or he

realized that most citizens did not know about it, since he denounced Caesar for his

impieties at a contio in 58 B.C. In that year Clodius gave him the opportunity to recount

how Caesar had ignored his announcements as a way of proving that the leges Iuliae

were invalid on religious grounds.148 It would have been pointless to call Bibulus to speak if most Romans were aware of (or were concerned about) the technicality. The fact that Caesar had not actually violated religious law was immaterial to the issue; what mattered was that Bibulus could plausibly make a charge of impiety against his opponent.

Bibulus was able to persuade many of his fellow citizens that Caesar had acted impiously because he had trampled on Roman law and Roman religion.

Debates about Responsibilities

Because religious authority in Rome was entrusted to so many individuals or groups and because Roman aristocrats vied for positions in the cursus honorum at the same time that they held priestly office, there was occasionally conflict over whether an individual could hold some of positions on the cursus, which often required him to be far away from Rome, and still fulfill any priestly duties which required his presence in the city. The priests known as flamines, fifteen men under the authority of the pontifex

147 Linderski (1965), 425-426.

148 Cic. Dom. 40, Har. resp. 48.

70 maximus, presented a special problem for their holders because they were not organized

into a college. Each flamen had to perform the duties himself, since he had no colleagues

who could take over in his absence. The flamen Dialis, sacred to Jupiter and the most

revered of the flamines, had so many restrictions imposed on where he could go, how he

could travel, and what he could see that a career on the cursus would be extremely

difficult and holding the consulship all but impossible.149 Yet flamines were drawn from noble families and their holders had the same desire to serve their community and receive the attendant honors that their fellows had. As a result, many flamines embarked on political careers, and when someone (usually the pontifex maximus) tried to intervene to block flamines from certain forms of public service which seemed to conflict with their religious duties, conflict occurred.

It was once the custom to see squabbles of this kind as screens for political ambition—rivals of the flamines would jump at the chance to get a choice military command or public office by hamstringing their opponents by any means necessary— cynical manipulation of Roman religion for political ends.150 More recent studies have

questioned this interpretation, e.g. that of Develin, who argued that the Roman

aristocracy as a whole, and priestly bodies in particular, were composed of men generally friendly with each other who would not resort to cynical manipulation of the religious system for political advancement. Instead, conflicts over how priests carried out their duties had primarily religious motives: they were the result of a deep-seated and

149 Szemler (1972), 96.

150 See, e.g., Bleicken (1957a).

71 traditional piety on the part of Roman officials.151 Neither of these interpretations makes

sense in light of the evidence. It was the fragmentation of Roman religious authority which itself contained the seeds of religious conflict—flamines and other religious

officials who felt injured by the rulings of the pontifex maximus had easy recourse to

other bodies with religious authority.

In 189 B.C. Q. Fabius Pictor, praetor for that year and also flamen Martialis, received as his province the island of Sardinia. Before he could leave Italy, however, he was stopped by P. Licinius Crassus Dives, the by then venerable pontifex maximus who

had ordered Sulpicius Galba to vow a fixed sum of money to Jupiter in 200 B.C. Crassus

argued that Pictor could not take up his province, since he could not fulfill his priestly

duties so far from Rome. Fabius Pictor, who must have had as good an understanding of

his obligations as anyone, did not agree with the supreme pontiff. He apparently saw no

problem with a major flamen occupying a command outside of Italy. Pictor refused to

bow to Crassus’ authority, and the two men carried on a bitter dispute in the senate and

before popular assemblies. Crassus as pontifex maximus fined Fabius for his failure to

comply with the order, but Fabius appealed to the tribunes of the plebs and made a formal

provocatio to the Roman people. The assembly found against Fabius, but generously remitted the fine against him. Fabius was so vexed that he tried to resign his praetorship, but the senate made him praetor peregrinus so he could hold his office and remain in

Rome.152

151 Develin (1978).

152 Livy 37.51.1-6; Richard (1968); Szemler (1972), 98-99; Briscoe (1981), 369-371. Livy’s use of the passive voice obscures who exactly fined Pictor, but imposing a fine was well within the powers of the 72 It does not make sense to interpret the clash between Crassus and Pictor in terms of factional politics, as evidence of religious decline, or merely as a display of an excessive Roman concern for procedural correctness. Licinius Crassus was at the end of a long political career, so Fabius Pictor, who was still climbing the cursus, was not a rival. There is thus no need to see Crassus as a cynical manipulator of his religious position to hamstring the career of potential competitors. Develin’s approach does not help us much either; if we argue that Crassus was motivated by a truly pious desire to see that proper religious procedure was followed, our analysis leaves too many questions unanswered. Pictor’s conduct in particular becomes inexplicable: what motivated him?

Impiety? Part of our problem when we study Roman religious attitudes is that it is very difficult to reconstruct motivation from a distance of more than two thousand years.

Crassus may have had a personal dislike for Pictor, or he may have wanted to make certain that one of Pictor’s rivals got the Sardinian command, or he may only have been concerned to see that all rituals were carried out in a proper manner, or he might have just been a crotchety man who reveled in using his position as pontifex maximus to cause conflict. It might have even been a combination of all the above motives, or none.

What is clear is that whatever they believed, Crassus could make a case that

Pictor could not fulfill his obligations to the gods if he went to Sardinia, and Pictor could make a case that he could. Each of these men was an aristocrat and each held important

Roman religious offices. If anyone should know exactly what obligations the flamen

Martialis owed to the gods and to his community, it was Crassus the pontifex maximus pontifex maximus and we can assume an assembly did not fine him because the passage makes it clear that an assembly remitted a fine already imposed.

73 and Pictor the flamen Martialis. The fact that a dispute could arise demonstrated that the rules which governed priestly conduct were open to debate and were flexible enough that the Romans themselves treated them as open to interpretation. They were not hard and fast rules which allowed no room for quibbling; instead they were guidelines which governed conduct and which could be modified and adapted. In a novel situation like

Pictor’s, the absence of any clear tradition to guide a decision sparked a conflict. Thus, both Crassus and Pictor presented arguments to the senate and to the assemblies that they had validly interpreted the rules governing the office of flamen Martialis.

Again we see that the structure of Roman politics and religion encouraged debate over proper religious procedure. The pontifex maximus could discipline the flamines but was no more superior to them than he was to the other members of the pontifical college: he was the most influential and respected of the pontiffs but he was not technically their

‘boss.’ His word was not law and his rulings were subject to review. When Crassus ruled that Pictor could not take up a province away from Rome, Pictor was not obliged to meekly obey. Both the senate and the popular assemblies provided a forum for debate and had the power to resolve the issue—the senate could weigh in with its considerable influence on the assemblies, which could decide one way or another. In the end, Crassus’ interpretation was judged to be correct, but assembly and senate went a long way to accommodate Pictor. An assembly remitted the fine imposed on him, and the senate devised a place for him, so he could be both praetor and flamen Martialis. This was a workable compromise that demonstrates the flexibility of the Roman religious system.

The fragmentation of religious authority thus encouraged disputes over religious

74 procedure; the resolution of these disputes allowed the Roman system to deal with

problems and evolve.

Two decades earlier another flamen had tried to overcome the limitations of his

office and take a place in Roman public life outside the restrictive obligations of his

priesthood. In 209 B.C. the flamen Dialis died and the same P. Licinius Crassus, the

pontifex maximus, compelled a dissolute young wastrel, C. Valerius Flaccus, to take his

place. Flaccus came from a noble family, and he greatly resented having the office

imposed upon him. The flamen Dialis was bound by so many religious restrictions that it

would be very difficult for him to hold elective office. Particularly crippling was his

inability to look upon troops under arms or upon the dead, which made military service

impossible. At the start of his career Flaccus sent signals that he would not be denied the

honors that young nobles competed over, and, in fact, turned the flaminate to his

advantage. He began by reforming his life and became a model of rectitude, thus

repairing his public reputation. When he had earned the public’s esteem, he went to a

senate meeting and took his place among the senators. The praetor P. Licinius153 escorted him out of the senate. At this point a struggle began over whether it was proper for the flamen Dialis to attend meetings of the senate.154

Fortunately for us, Livy preserves some of the arguments made by Licinius and

Flaccus to advance their arguments, and both appealed to precedent. Flaccus argued that

in the past the flamen Dialis, in recognition of the prestige of the office and its holders,

153 Not the pontifex maximus. See Broughton (1951), 1:291.

154 Livy 27.9; Val. Max. 6.9.3; Richard (1968); Szemler (1972), 97-98.

75 had been allowed to attend meetings of the senate and had even been granted the curule chair, which was otherwise reserved for the most important Roman magistrates. Licinius made his case on recent precedent. For him what was important in deciding questions of religious procedure was not stories dug up from old records but by current practice: no flamen Dialis had been allowed to witness senatorial debates for two generations.

According to Livy, Flaccus retorted that he should not be denied honors owed to him because his predecessors in the flaminate had not been worthy of them.

Even if Livy embellished his account, the story reveals a dilemma which faced

Romans when they tried to decide conflicts over obligations owed by (and to) priests: again, there were multiple sources of authority. Roman religious and political procedure was not static, it was evolutionary, and as a result practices changed over time. What was done in the past might conflict with what was done in the present, and when disputes arose, as they inevitably did, precedent could be found for multiple practices. In this case, both Licinius and Flaccus could find authoritative precedents for their arguments.

And again, both could make sustainable arguments.

Flaccus appealed his case to the tribunes of the plebs, and the debate between

Licinius and Flaccus was waged before the plebs. When all ten tribunes supported

Flaccus, almost certainly guaranteeing him the support of the assemblies, then the praetor dropped his objections, and the flamen earned a place in the senate. Flaccus was thus able to effect a change in the role of the flamen Dialis within the community. We see again how an unprecedented situation in combination with Rome’s fragmented religious

76 and political structure gave birth to a dispute. And again, resolution of the conflict introduced a new procedure into the system and allowed Roman religion to evolve.

Flaccus’ career would continue to demonstrate the flexibility of the Roman system. In 200 B.C. he decided to begin a career on the cursus, in spite of the handicaps of his priestly office. He was elected curule aedile, but a problem arose. All magistrates were required by law to swear on oath to obey the laws before their inauguration, but as flamen Dialis, he could not take any oaths. This limitation must have been obvious both to him and to the electorate, yet he did not let this stand in the way of his candidacy. He seems to have assumed that a solution could be found if he were elected, and, in fact, a solution presented itself. He asked to be exempted from this law and to take up his office. The senate debated and instructed the consuls to find someone respectable who could take the oath on his behalf. They chose his brother Lucius, the praetor-elect, and

Flaccus began his improbable climb up the cursus.155

Flaccus’ career might have ground to a halt at this point, since his office prevented him from participating in military campaigns or even leaving Rome, but here a recent precedent and change in priestly practice opened a door for him: as we saw in the beginning of this section, the senate and the assemblies had resolved a dispute between the pontifex maximus and the flamen Martialis by allowing the flamen to hold a praetorship in Rome, so that he could both hold priestly office and an office on the cursus. In 184 B.C., Flaccus, seeing the possibility that he could advance on the cursus and win even more honor and prestige in his community, ran for a suffect praetorship

155 Livy 31.50.6-9; Szemler (1972), 166-167; Briscoe (1973), 164-165.

77 after one of the praetors had died.156 A dispute over the candidacy of one of his rivals led the senate to cancel the interim election, but he stood again that year in the regular election and won a praetorship for 183. At the beginning of the year when it was time to decide provinces, the senate followed the process it had established for Pictor in 189 and made certain that Flaccus would be retained in Rome where he could fulfill the obligations of both the praetorship and the flaminate.157 Thus as a result of a dispute five years previously, the Roman political and religious system found a way to allow the flamen Dialis to have something resembling a traditional career on the cursus.

Conclusions

The Romans did not have a simple, definitive means to separate actions that were pious and impious. Instead, the Romans had general rules that guided them in making a decision, but these rules were open to interpretation because the Romans allowed their religious system to be flexible. For example, piety required Roman generals to take auspicia de tripudiis and receive favorable auspices before battles to make certain that

Jupiter was not opposed to their fighting on that day. However, the system was flexible enough to allow L. Papirius Cursor to go into battle after his pullarius lied and said that his augural birds had eaten and that favorable auspices had been received. The Romans interpreted Cursor’s success (and the death of the pullarius) as a sign that Jupiter had indeed granted Cursor permission to fight, and they did not split hairs over what constituted proper augural procedure. Likewise, in 200 B.C. as they were preparing to

156 Livy 39.39.2.

157 Livy 39.45.4.

78 enter a war of uncertain length that offered uncertain rewards, they did not allow tradition

to hamstring their actions: they introduced an innovation by allowing a departing general to offer Jupiter a ‘sum to be named later’ in exchange for his aid against their enemies.

The Roman religious system was flexible because it was a system of men as much as it was a system of laws. Religious authority derived not just from written texts or traditions but also from individuals or groups who discussed and debated among themselves when they had to resolve a dispute over pietas. When C. Valerius Flaccus tried to secure a seat in the senate for himself because he was flamen Dialis, he could cite

precedent showing that in the past the flamen of Jupiter was allowed to attend meetings

of the senate. His opponent cited recent tradition and argued that Flaccus should be kept out. What decided the matter was not appeal to precedent, but Flaccus’ own character.

Because he had earned so much respect from his fellow citizens and from his fellow aristocrats he was allowed to go where the undistinguished flamines of the previous generations had not been allowed.

Roman civic structure placed authority over religious matters in the hands of the senate, the assemblies, individual magistrates, and the priestly colleges, providing many fora for religious disputes to be heard. The multiplicity of available fora made it easier for disputes to occur. It also made a dispute over piety a very public event, as each side

tried make certain that it won over every possible group whose opinion could affect the

outcome of the contest. As a result, these disputes were almost always carried out in the

senate and before the populus Romanus, and very often before a priestly college.

Because resolution required the opinion of so many different groups, contest over what

79 constituted proper religious behavior could last quite a long time. If one side did not like

the direction the debate was taking, it was not hard to take the fight to another venue.

The dispute over whether it was correct to choose priests through cooptation or election

lasted decades: the suggestion to allow election was aired but shot down in 145 B.C.,158

Domitius’ law was passed in 104 B.C., Sulla had it repealed around 80 B.C., and

Labienus’ law reinstated election as the ‘proper’ method in 63 B.C. The dispute over the propriety of Bibulus’ and Caesar’s conduct in 59 lasted for years and became fodder for

Cicero in his personal rivalry with Clodius: Bibulus tried to watch the skies for an entire year, Clodius responded by having a law passed making this kind of obstruction illegal, and Cicero responded by spending the next few years accusing Clodius of impiety for passing laws which trampled on Roman religion. By 43 the dispute was resolved, not because any institution had settled it, but because all of the participants had died.

Pietas (and its opposite) were not absolutes, but were defined and redefined every time a dispute broke out about what constituted proper religious procedure and what constituted proper behavior toward the gods. This made Roman religion a living institution, but it also encouraged public debate, often bitter and divisive, about religious issues. This brings us to our final point. It was the structure of Roman politics and religion which created public contests about pietas; in other words, ‘politicization’ of religion was inherent to the operation of Roman public life, not a sign that a once pristine religious form had slipped into corruption and decline.

158 Cic. Lael. 96; Brut. 83; Nat. D. 3.5; Rep. 6.2. 80

CHAPTER 3

THE BONA DEA AFFAIR

In this chapter we will use the rivalry between P. Clodius Pulcher (c. 92-52) and

M. Tullius Cicero (106-43) as a case study to explore further the ideas discussed in the

last chapter. The rivalry between the two men was waged on religious as much as

political grounds (a distinction that makes sense to a modern reader, who conceives of the

two separately; the combatants themselves would have envisaged their rivalry as taking

place in the context of the Roman civitas, in which politics and religion were so tightly

bound as to be inseparable.) We will examine the Bona Dea affair of 62-61 B.C., which

sparked the decade-long hostility between the two men. The Bona Dea affair began after

Clodius violated the sacrifices to the Good Goddess and was prosecuted for incestum.

The trial of Clodius is useful as a study because it reveals the mechanism through which contests over piety were waged. Roman civic structure turned the battle into an epic struggle: it was fought in the senate, in contione, before a priestly college, and before a quaestio extraordinaria. The trial of Clodius in 61 was a reaction to a new problem, one

which the system very rarely had to address: a spectacular and apparently senseless

violation of a civic rite. Furthermore the affair took place in a late-republican context, a

81 period in which the senate was particularly touchy about apparent threats to its authority.

This raised the stakes of the contest.

The Bona Dea affair illustrates more than any other example the civic processes

that the Romans used to conduct, and to attempt to resolve, a dispute over the issue of

piety. When Clodius’ outrageous behavior caused a public outcry, various groups who

had authority over religious matters were consulted about what to do. When the senate resolved to treat Clodius’ impiety as a crime, the novelty of their ‘solution’ prompted a

reaction by senators who opposed how the majority of their colleagues were handling the

matter. In contione a consul and tribune opposed the senate’s consultum, which aimed to set up an extraordinary tribunal to investigate the affair. Clodius himself took advantage of electioneering tactics becoming more common in the late republic: he packed the contiones with gangs of rowdy supporters, and he undermined the integrity of the assembly’s vote through intimidation and ballot-tampering. When a tribune’s veto nearly brought the matter to an impasse, a compromise was arranged, a court set up, a trial conducted, and a verdict reached. Though this ended institutional involvement in the affair, the contest over Clodius’ pietas did not end with his acquittal. Cicero made certain that neither senate nor Roman people would forget Clodius’ behavior, by reminding them of the Bona Dea affair in every subsequent squabble with Clodius.

82 The Incident at Caesar’s House159

In early December 62,160 the annual sacrifice in honor of the Good Goddess was held in the house of C. Julius Caesar. According to procedure the ritual was held in the house of a magistrate with imperium, and Caesar was praetor that year. By tradition, no

men were present in the house. Aristocratic women conducted the sacrifice in secret.161

On this occasion, however, the tradition was broken. P. Clodius Pulcher was discovered in the house dressed as a woman. He was chased out, and the sacrifice was performed again from the beginning.

The incident first enters our historical record on Jan 1., 61 when Cicero reports it to Atticus. Here is his statement:

P. Clodium Appi f. credo te audisse cum veste muliebri deprehensum domi C. Caesari cum sacrificium pro populo fieret, eumque per manus servulae

159 The chief ancient sources for the Bona Dea Affair are Cic. Att. 12 (I.12).3, 13 (I.13).3, 14 (I.14).5-6, 16 (I.16).1-6, 9-10; Suet. Iul. 6.2, 74.2; Plut. Cic. 28, Caes. 9-10; App. Sic. frag. 7, B. Civ. 2.14; Dio Cass. 37.45; Schol. Bob. 85-86, 89 St. The chief modern discussions of the Bona Dea affair can be found in Gentile (1876), 37-74; Gallini (1962); Piccaluga (1964); Balsdon (1966); Stockton (1971), 158-160; McDermott (1972); Lacey (1974); Wiseman (1974), 130-137; Rundell (1979); Scheid (1981), 130-133; Hillard (1982); Moreau (1982); Epstein (1986); Mulroy (1988); Brouwer (1989), 363-370; Tatum (1990); Mitchell (1991), 83-86; Tatum (1999), 62-86.

160 The dating of the festival is problematic. We know from Plut. Cic. 19.4 that the celebration to the Good Goddess in 63, the year before the Bona Dea Affair, occurred on the night after Cicero had caught the conspirators trying to get the Allobroges to support an attack on Rome. (Dec. 3). However, Plutarch continues his discussion with the statement that Cicero called the senate to meet the next day to decide the fate of the conspirators, when, in fact the meeting was held on Dec. 5. Thus Plutarch has compressed time, and we do not know whether the celebration of 63 took place on night of the 3rd (the night after the arrest) or the night of the 4th (the night before the execution), but we can narrow the ceremony of 63 down to those two nights. If we assume, with most scholars, that the festival had a movable date, this information does not help us nail down a firm date for the festival of 62. A speculative date of early December before the 5th can be made, however, since we do know that Clodius committed his act of sacrilege while he was quaestor-elect, and quaestors entered office on Dec. 5th; see Brouwer (1989), 363-364; Tatum (1999), 270-271 n. 17. On the other hand, Wiseman (1974), 130 and n. 1, argues that the festival did in fact have a fixed date of Dec. 4th.

161 For a discussion of the nature of the rites and its similarity to Greek religious ceremonies see Wiseman (1974), 130-137; Versnel (1992).

83 servatum et eductum: rem esse insigni infamia. Quod te moleste ferre certo scio.

I believe you will have heard that P. Clodius, son of Appius, was caught dressed up as a woman in C. Caesar’s house at the national sacrifice, and that he owed his escape alive to the hands of a servant girl—a spectacular scandal. I am sure it distresses you.162

The interruption of the sacrifice required an instauratio, a repetition of the ceremony,

which was duly carried out. At this point the state’s interest in the matter normally came

to an end, since from the community’s point of view the successful repetition of the ritual repaired any damage to the pax deorum that Clodius had done through his intrusion.

Clodius committed an act of willful impiety, which the Romans believed to be

inexpiable, but this was a matter between Clodius and the gods.163

Why did Clodius Violate the Rites?

Let us first examine Clodius’ motives for sneaking into the ancient rites. It may seem pointless to discuss this at all, given its apparent irrelevance to our subject and

given the difficulty of reconstructing motivation from a distance of 2000 years. We must

examine this issue, however, because some scholars argue that Clodius committed a

deliberate act of impiety as a way of making a public political statement. He thus

intended to start a contest over pietas. We will see that this theory is not tenable, and that

while we cannot know what Clodius was planning to accomplish by violating the rites, it

is certain he did not intend his activities to become a topic of public debate.

162 Cic. Att. 12 (I.12).3. Shackleton Bailey’s Loeb text and translation.

163 Scheid (1981), 130, (1999), 341-342.

84 The ancient sources almost unanimously assert that Clodius entered Caesar’s house to have a tryst with Caesar’s wife Pompeia.164 Although this idea gained acceptance in antiquity, it has not gone unchallenged. Cicero never mentions Clodius’ motives in Att. 12.3. We do learn, in his letter of Jan. 25, 61, that Caesar has divorced his wife Pompeia, possibly in reaction to rumors of her infidelity.165 Caesar’s actions

probably fueled speculation and confirmed in the minds of some that Pompeia and

Clodius were having an affair. However, Caesar refused to testify at Clodius’ trial. Even

though he was given the opportunity to destroy the man who ostensibly cuckolded him

and though his own mother and sister were able to identify Clodius as the man who had

broken in, Caesar claimed he had no knowledge of the matter.166 Moreover, the night of

an annual sacrifice does not seem to be a particularly convenient night to slip into

Caesar’s house, even if Caesar were guaranteed to be absent, and there certainly was

more romantic attire Clodius could have chosen than his disguise as a woman.

Given the implausibility of adultery as a motive for Clodius’ sacrilege, other

alternatives have been proposed. H. Benner and C. Gallini have argued that Clodius

initiated the scandal as a sort of political coming-out. Gallini argued that since the Bona

Dea festival was conducted by aristocrats and since it was part of the state cult, Clodius’

sacrilege would have announced his intentions to pursue a popularis policy that would

164 Cic. Har. resp. 3-4; Val. Max. 9.1.7; Plut. Caes. 9-10; App. B.Civ. 2.14; Dio Cass. 37.45.

165 Cic. Att. 13 (I.13).3.

166 Suet. Iul. 74.2; Schol Bob. 89 St.; cf. App. B.Civ. 2.14; Dio Cass. 37.45.

85 appeal to groups interested in religious innovation.167 While Gallini’s suggestion has

intriguing aspects, and while her decision to focus on the religious components of the

affair is admirable, the suggestion has several flaws. Although Clodius might have been

willing to profane religious functions for political purposes,168 it is highly unlikely that he

intended to make any kind of political statement dressed in women’s clothing. Being

caught in such garb was an extreme embarrassment.169 Clodius would have to have had

no political sense at all if it were his intention to get caught dressed as a woman while

violating religious rites, since such an action was not only bound to irritate a number of

important members of the aristocracy but also to give them ammunition with which they

might humiliate him and undermine his political support.170 Furthermore, neither the

starting assumptions Gallini makes about the role of the cult in Roman religion nor her

perceptions of Roman politics hold water. Gallini assumes that the civic community was

split nicely along optimate/ popularis lines, which subsequent scholarship has called into

question.171 In addition, she assumes that the ordinary Roman perceived the December

rite as ‘aristocratic’ because aristocratic women performed the rites. Given the prominent

place of the Roman aristocracy within the whole Roman religious structure, the logic of

167 Gallini (1962). 259-262. Benner (1987), 38-40 makes a similar point. Benner, who sees Clodius setting out on a popularis path from the beginning of his public career, argues that Clodius intentionally caused a scandal as a way to provoke a reaction from conservative senators.

168 According to Cicero, Clodius profaned the Megalensia in 56 by employing gangs of slaves to attack his political enemies (Har. resp. 22-25). Games, however, were traditional venues for public political display, and Cicero might be exaggerating the rowdiness of Clodius’ followers as well as denigrating their social status.

169 Manfredini (1985).

170 Moreau (1982), 25-26.

171 E.g. Seager (1972).

86 Gallini’s argument makes sense only if she were prepared to assert that during the first

century ordinary Romans were willing to reject much of Roman civic religion as

‘aristocratic’ and were seeking an entirely new religious system, an assertion that is not

supported by the evidence. Gallini’s ideas reflect the general tenor of the scholarship of her era, but they rest on the old assumption that late republican aristocrats employed religion solely for political ends. This idea has been thoroughly put to rest by recent scholars.

Other motives for Clodius’ presence at Caesar’s house have been proposed.

Mulroy argues that Clodius did not believe that showing up at the festival was

sacrilegious.172 This is an intriguing suggestion. We have seen that in some cases a

dispute arose over whether a person had acted piously or impiously; an individual could

believe he was acting within the bounds of Roman tradition while some of his fellow

citizens vehemently disagreed. Mulroy, however, fails to convince. He begins by

arguing that Plutarch’s account of the affair, which asserts that an adulterous relation with

Pompeia impelled Clodius to sneak into Caesar’s house, lacks credibility because it has too many fictionalized elements. This is a plausible beginning, perhaps, but he then proceeds to make the unlikely assertion that Clodius could have believed that no one would be bothered by his presence at the ritual. He argues that the December sacrifice was only recently installed in Rome and was not as hallowed as Cicero tried to portray it in his speeches. Following Wiseman, he argues that there was a close similarity between the celebrations to the Good Goddess and Dionysiac celebrations, but unlike Wiseman he

172 Mulroy (1988), 165-178.

87 concludes from this that transvestitism and erratic behavior were tolerated. 173 All of this,

he proposes, would lead Clodius to assume that his attendance would not be

objectionable. However, he forgets to study the earliest evidence, the testimony of

Cicero’s letters, in any detail. These letters were written before the dispute between

Cicero and Clodius broke out, which makes them a comparatively better source than

Plutarch or even Cicero’s post reditum speeches, which were composed as rhetorical

weapons to use against Clodius. Cicero pointed out in Att. 12.3 that the sacrifice was

taken pro publico, and in several letters he implied that the presence of men was strictly

forbidden.174 Plutarch explicitly denied that men were allowed,175 and if Mulroy has

called Plutarch’s version of the affair into question, we still have the testimony of the

Bobbio Scholiast.176 It is inconceivable that Clodius could have failed to known that this festival was being conducted on behalf of the community as a whole and that men were

forbidden. We cannot assume, with Mulroy, that Clodius innocently blundered into

Caesar’s house looking for a good time, thinking that his presence would have been welcomed. If Clodius could have made an arguable case that his presence was acceptable, then he would almost certainly have done so at his trial; instead (as we shall

173 Wiseman (1974), 130-134. Wiseman compares the festival of the Good Goddess to eastern rites honoring Dionysus, Cybele, and Zeus Hypsistos, but sees it as an almost dignified ceremony where the women lounged on couches and drank wine mixed with honey. Mulroy envisions the celebration as a revel.

174 Cicero implies the presence of men was forbidden in Att. 13 (I.13).3: ‘Credo enim te audisse, cum apud Caesarem pro populo fieret, venisse eo muliebri vestitu virum.’ Cicero would later (Att. 27 (II.7).3, 59 B.C.) joke about Clodius’ presence in Caesar’s house– in spite of the fact that he was the only man there, he could not obtain a place on Caesar’s board of 20 commissioners to administer his agrarian laws.

175 Plut. Cic. 19 and Caes. 9.

176 ‘sacrificium viris omnibus inaccessum’, Schol. Bob. 85 St. It is possible, however, both the scholiast and Plutarch’s accounts have derived from the same erroneous source. For a full discussion of the issue see Brouwer (1989) 255, n. 7-10.

88 see below) he chose to defend himself by claiming he was not even in the city on the day

of the rites. Like many scholars of the last generation, Mulroy errs because he approaches

the matter from the assumption that Roman ritual in the late Republic was in a state of

‘confusion and neglect’.177 According to him, this confusion made it possible for Clodius

to assume that no one would object if he dropped by the festival. The problem here is

that work by scholars such as North and Scheid makes the assumption that late republican

religion was in a state of ‘confusion and neglect’ doubtful. 178

Other explanations for Clodius’ presence at the festival center on his reputation

for licentious behavior. Moreau suggests that, in addition to the enticements of Pompeia,

Clodius was attracted by the risk involved and the chance to break the rules. According to him, morals among the aristocracy had become somewhat lax during the late Republic.179

Tatum adds that, since the rites were reputed to involve promiscuous conduct by the

women present,180 a “young man of dissolute nature might have been tempted to snatch at

least a peek.” He also noted that Clodius “was not all deterred by the dictates of the civic

religion, by the dignity of his office, or even by the anxiety over the senate’s

censoriousness.”181 This is probably the best line of argument—Clodius was intrigued by

the salacious reputation of the festival and arrogant enough to put his prurient curiosity

177 Mulroy (1988), 173-174.

178 E.g., Beard, North, and Price (1998), Scheid (2001). See chapter one for a discussion of current scholarly trends in the study of Roman religion.

179 Moreau (1982), 24-26.

180 Juv. Sat. 6.314-45.

181 Tatum (1999), 86.

89 over the dictates of traditional respect for the civic cult. We must admit, however, than

any attempt to ascertain Clodius’ motives at this distance must ultimately lead to

unverifiable speculation. The relevant point here is that no one can tenably defend either

the argument that Clodius used the sacrilege to make a public political statement or the

idea that he did not realize that he was committing a sacrilege when he went to Caesar’s

house.

Q. Cornificius

Clodius probably hoped that the whole matter would blow over in a few days, but

public opinion quickly turned against him. Though some scholars argue that the Roman

public did not take Clodius’ behavior seriously, our best evidence shows that the Romans

regarded the violation of the sacrifices as a scandal.182 The best gauge for evaluating the

initial public reaction to Clodius’ act of impiety can be found in Cicero’s letters to

Atticus. Att. 12.3 indicates that both Cicero and Atticus were deeply disturbed by

Clodius’ behavior. It was, however, quite a distance from public outcry to public prosecution. Clodius’ behavior presented the Romans with a problem since his behavior was extraordinary. As we saw in chapter two, when the Romans were faced with unexpected and new religious issues, it often took public debate and even political conflict before Roman institutions developed a response.

24 Epstein (1986), 29-35 has characterized Cicero’s reaction to the first reports of the incident as cynical amusement. He sees Cicero as a world-weary politician who has learned to expect the worst of human nature and who has adapted to the increasingly absurd events which dominated Roman political life in the last years of the Republic. As further evidence for Cicero’s initial disinterest he cites Att. 13 (I.13).3, where Cicero admitted that he was losing interest in prosecuting Clodius. Tatum (1999), 65-66, however, takes the opposite line, arguing that Cicero seems to have no doubt that Clodius’ actions would genuinely shock Atticus. He points out that Clodius’ actions ruptured the pax deorum and violated the sanctity of the Vestals, two actions which Romans took very seriously. Furthermore, Cicero described his initial reaction in more detail in Att. 13 (I.13).3: he was as stern as Lycurgus in the beginning. 90 A concerned senator, Q. Cornificius, got the ball rolling by raising the matter in the senate. Normally after the Vestals had completed the instauratio, the state’s interest would have ended, since the Romans usually left punishing impiety in the hands of the gods. Cornificius decided to keep the issue alive. It is hard to explain why he did this, since Cicero does not tell Atticus what motivated him. Tatum has provided what seems to be the best answer: Cornificius was a man of who prided himself on his scrupulous morality.183 Consequently he pushed the senate to respond to Clodius’ impiety. That it was Cornificius who brought the senate’s attention to the matter warrants comment.

Recent scholarship has focused on the central role that the senate played in

Roman religion, but Cornficius’ action demonstrates the importance of individual initiative in creating disputes over pietas and reminds us that the senate was not a monolithic institution but was composed of hundreds of individuals with their own goals, ideals, and ambitions, all three of which could conflict with the goals, ideals, or ambitions of their fellows. Mary Beard has used the senate’s role in the Bona Dea affair as an important piece of evidence demonstrating that the senate played the chief mediating role between gods and citizens in Roman religion. She reminds us that it was the senate that ordered the pontiffs to conduct an investigation and the senate that ordered the consuls to

183 Tatum (1999), 72. Tatum bases his evidence on several hints in the sources; according to Asc., 82 C., Cornificius was sobrius et sanctus. Cic., Att. 1 (I.1).1 treated Cornificus’ candidacy for the consulship as a joke, probably because it was highly unlikely he would be elected. From this Tatum concludes that Cornificius’ insistence that the senate discuss the Bona Dea affair was ‘in complete accord with the source’s portrayal of his strongly moral character and Cicero’s opinion that he could sometimes stray out of his depth.’ Tatum leaves the door open for the possibility that Cornificius acted as someone else’s agent. Gruen (1966), 121 and (1974), 274 n 51 suggests Cornificius might have been acting for Caesar, who wanted the matter resolved without having to get his hands dirty. No such suggestion is necessary, since Gruen himself correctly observes that in the wake of the scandal ‘feelings ran high against Clodius...’ (1974), 248. Cornificius’ anger at Clodius’s sacrilege more likely drove him to insist that the senate discuss the Bona Dea affair; he need not have been acting as someone else’s agent.

91 draw up a bill to prosecute Clodius.184 Her analysis is fine as far as it goes but misses an

important part of the picture: the senate need not have even considered the matter, and

might not have, except for a stern ex-praetor who insisted that they discuss the issue. The

consuls had the opportunity to raise the matter after their inauguration, since their first

duty was to discuss religious affairs,185 but they did not do so. There were many

prominent consulars, some of whom Balsdon and Tatum label as Clodius’ enemies, yet

none chose to direct the senate’s attention to the matter.186 Cicero himself was quite clear

on this point, telling Atticus that it was not ‘one of us’ who raised the issue.187 It was

Cornificius’ prodding, not that of the senate, that forced the Bona Dea affair back into

public domain.

The reluctance of the consuls to raise the matter for public discussion is easily

explainable. The thought to do so might never have occurred to them. Though Clodius

had endangered the state through his violation of the pax deorum, the Vestals

immediately carried out an instauratio, which repaired the rupture between the Roman

and divine communities. Although Clodius’ actions were extraordinary, violations of the

pax deorum occasionally occurred and once they were repaired, the Romans moved on.188

184 Beard (1990), 32.

185 Scullard (1981), 53.

186 Balsdon (1966), 68; Moreau (1982), 58-60; Tatum (1999), 73-74. For a full discussion of the composition of the senate in the late 60s, see Parrish (1972).

187 Following Shackleton-Bailey (1999), 63 n.7, who argues that ‘aliquem nostrum’ referred to the consulars, though Moreau (1982), 60 suggests that Cicero was referring to the conservative boni such as Hortensius, Lucullus, or Cato.

188 Scheid (1981), 130, (1999), 341-342.

92 A further problem confronted the consuls, the consulars, Cornificius, and anyone else

who wanted to make the affair a public issue: few public or legal avenues lay open to

anyone who wanted to punish Clodius, especially if Caesar was unwilling to make an issue of the entry into his house.189 Ultimately if a census were completed then the

censors could (if they wished) strike Clodius off the roll of senators.190 But, outside of

this, the Roman state had no readily available means to deal with Clodius. Thus few in

the senate probably regarded it as the senate’s role to consider the matter.

What, then, motivated Cornificius? Cornificius was almost certainly not spurred

on by political rivalry with Clodius. Cornificius was a praetorian novus homo who had

reached the pinnacle of his career. Clodius was a well-connected political neophyte who

represented no real threat to Cornificius and who was not competing with him for

political office. The most common approach to understanding the development of the

Bona Dea affair from a private scandal to a public fight is to see a small faction of die-

hard opponents determined to use the matter as a pretext to destroy Clodius’ career.191

Even if one argues that this is what the prosecution of Clodius turned into, it seems clear

that this is not how it began. It is very hard to find any evidence that inimicitia led

Cornificius to raise the matter in the senate. Had Clodius’ opponents intended from the beginning to use this issue against him in 61, it would have made more sense to bring out their most prominent members to lead the charge. Instead, they did not even make an

189 Moreau (1982), 83-89.

190 Greenidge (1894), 41-87 provides a long discussion of censorial infamia.

191 E.g. Balsdon (1966), 68-69; Benner (1987), 39-40; Tatum (1999), 73-74.

93 effort. Not Hortensius, not Cato, not Lucullus, but Q. Cornificius first raised the issue in

the senate.

Cornificius’ primary concern may not even have been to punish Clodius. The

chief question in the debate may have been ‘had the res publica done everything required

of it to seal the breach in the pax deorum?’ After all, Clodius’ offense was quite unusual,

and religious custom offered no guidelines on how to deal with him. Cornificius’ aim in

raising the matter for discussion might have been to start an inquiry on whether the

instauratio had, in fact, ended the state’s obligation to the goddess. And lest we forget the

link between religion and other aspects of civic life, let us remember that the sobrius et

sanctus Cornificius could have foreseen that his unusual192 concern for the religious

health of the community would have benefits for his public career. Cato the Elder, a

famous novus homo, rose to a position of civic prominence, and his descendant Cato the

Younger obtained a dominant place in civic affairs, in part because each made a point of

acting as fierce defenders of public morality and the mos maiorum. Cornificius may very

well have seen Clodius’ sacrilege as an opportunity to make a display of his zeal for

defending the civic cult.193

192 Cornificus’ concern seems unusual when he is contrasted with his fellow senators, who did not make the effort to draw the senate’s attention to Clodius’ behavior.

193 We must take care not to judge this kind of activity as ‘exploiting religion.’ Cornificius could genuinely be interested in defending the civic cults and the mos maiorum, while at the same time realizing the benefits of making certain that everyone noticed his zeal.

94 The College of Pontiffs

After Cornificius called the senate’s attention to Clodius’ behavior, the senate

made use of the religious experts available to it. The senate referred the matter to the

College of Pontiffs and the Vestals.194

This consultation was both customary and extraordinary. It was not uncommon

for the senate to consult with religious colleges; consultations of the college of augurs,

the college sacris faciundis, and the pontiffs were frequent. This is the only known example, however, of the senate’s consulting both the college of pontiffs and the Vestals

for a ruling on a religious issue.195 It is unfortunate that we do not know the exact

question the senatus consultum decreed that the college and Vestals answer. It is possible that they were consulted on a general level and asked to provide advice about what action the senate could and would take; they may also have been asked to discuss whether any additional action other than the instauratio needed to be taken to ensure that the breach in the pax deorum was sealed.

There does not seem to have been much opposition to the consultum that referred the matter to the pontiffs and Vestals. Since it passed, we know that no tribune interposed his veto, which merits comment since Clodius later had the energetic support of Q. Fufius Calenus, tr. pl. 61, who helped him prevent the passage of the rogatio Pupia

Valeria.196 Moreau speculates that Clodius did not fear the college’s decision because he

194 ‘postea rem ex senatus consulto ad virgines atque ad pontifices relatam’. (Cic. Att. 13 (I.13).3)

195 Moreau (1982), 63.

196 The bill that called for an extraordinary tribunal to be set up.

95 figured that the college as a whole would follow the lead of Caesar, the pontifex

maximus, who wanted to put an end to the affair as soon as possible so he could get to

Spain and take up his province.197 We need not jump to this conclusion. The situation

was unusual, and it is more likely that no one had any idea what the college would do.

Clodius could just as easily have assumed that the college would conclude that no further

institutional action was required, because the instaurationes conducted by the celebrants

after he had fled the scene had put the universe back into its proper shape.198

Cicero reports the decision of the college and Vestals to Atticus: ‘ab iis [the college] nefas esse decretum.’ We must evaluate the meaning of the college’s pronouncement. Nefas could mean anything not considered permissible,199 particularly in

a religious context, but it could also be interpreted as meaning against the law.200 Moreau, one of the few scholars who has tried to interpret the meaning of the pronouncement, concludes that the college was saying that Clodius had violated the universal order

197 Moreau (1982), 61.

198 Moreau (1982), 63-80, reviews the known composition of the college of pontiffs and concludes that its deliberations were influenced by the number of optimates on the college. It is hard to say whether the college was biased against Clodius from the beginning because of personal or political inimicitia. There is no reason to suspect that ‘optimates’ on the college would have been opposed to Clodius, who was just beginning his career and who had, in fact, been one of Cicero’s supporters against Catiline in 63. Clodius was also of a very noble family, which might have helped his case among the ‘optimates’. We should keep in mind that personal feeling toward Clodius might not have been the sole consideration of the college while it was deliberating. Too often scholars have assumed personal or political feeling drove these debates, but we should not overlook the possibility that a chief or even the primary concern of the college was deciding on a religious matter, not settling a score with Clodius.

199 ‘quicquid non licet, nefas putare debemus.’ Cic. Part. or. 3.2.25.

200 Varro Ling. 6.4.

96 established by the gods.201 The declaration that Clodius’ actions had been nefas was not

just a condemnation of a personal religious error; it had implications for the community

as a whole. Since the rites to the Bona Dea were conducted on behalf of the state,

Clodius’ sacrilege might have ruptured the pax deorum, the bond between the Roman

community and the gods that the Romans kept secure through scrupulous observation of

religious ritual. This interpretation is confirmed through the account of Cassius Dio, who

reports that the pontiffs ordered another instauratio to ensure that the breach in human-

divine relations was sealed.202 This did not mean that the pontiffs and Vestals were

announcing that Clodius had committed a crime, since causing such a rupture was not a crime in and of itself. For example, it was considered an impious act to knowingly carry out public business on a dies ater, and the perpetrator would forever have to deal with the

stigma of an inexpiable religious offense,203 but such actions were not normally

prosecuted by the Romans.

The Vestals alone had already concluded that the pax deorum had been ruptured

and had conducted the instauratio to repair it. The pontiffs and Vestals seem to be saying

nothing new. However, what they were doing when they declared the violation of the

rites to be nefas was drawing a clear line between pious and impious behavior; they

201 ‘Ce terme de nefas, qui désigne l’atteinte portée à la norme cosmique, à l’ordre universel voulu par les dieux...’ Moreau (1982), 79.

202 Dio Cass. 37.46.1 There is a potential source problem here, since Cicero Att. 13 (I.13).3 and Schol. Bob., 89 St. both indicate that an instauratio was conducted immediately by the Vestals, without waiting for the pontiffs to weigh in. Moreau (1982), 80 makes the plausible argument that a state-endorsed, official instauratio supplemented the one that the Vestals carried out immediately after Clodius was expelled from Caesar’s house.

203 Varro, Ling. 6.30, Macrob. Sat. 1.16.10-11. Rosenstein (1990), 81-83 discusses instances where Roman generals knowingly fought on dies atri/religiosi yet who were not punished by the Roman state.

97 defined Clodius’ behavior as impious. We must draw a distinction between the statement

of the college in January 61 and the actions of the Vestals on the night of the rites. After

Clodius interrupted them, the Vestals repeated the sacrifice, but this implied nothing

about Clodius’ pietas, since any interruption of the rite would force an instauratio. By

declaring the violation of the rites to be nefas, the pontiffs and Vestals were stating it as a

certainty that the interruption of the rites by a man was an act of impiety. In a sense we

are watching Roman religion evolve in response to changing circumstances. The pontiffs

had created a new kind of religious offense in response to a new kind of public behavior.

And, in fact, the decision of the pontiffs to define as impious the presence of a man at the

rites of the Good Goddess left a lasting impression on Roman religious practice: once

they had defined it so, it remained thus for centuries. We know this because when

Festus204 in the late second century A.D. wanted to give an example of an impious act,

the first thing he mentioned was the presence of a man at the rites to Bona Dea.205

As we saw in the last chapter, the line between a pious action and an impious action was sometimes hard to draw, and there was room for debate and discussion about what constituted pious behavior. One reason that the Bona Dea affair is so useful to those studying contests over pietas is that it provides an example of how the powers-that- were in Rome decided what was impious. In fact, we might even say that the discussions of the pontiffs and Vestals helped create a new category of impious behavior. It took a

204 Or his source, Gallus Aelius.

205 Festus, s.v. ‘Religiosus’: ‘ Gallus Aelius quod homini ita facere non liceat ut, si id faciat, contra deorum voluntatem videatur facere. Quo in genere sunt haec: in aedem Bonae Deae virum introire...’

98 very complicated series of interactions between individuals and institutions for this

definition to come into existence: the pontiffs and Vestals issued their ruling, but could

not have done so had the senate not called them; the senate alone had the authority to

refer the matter to the pontiffs, but the senate did so only after discussion and debate among its members and then only after an individual member brought the matter to its attention. Separately none of these could definitively declare the presence of a man at the rites to be an impious act. By scattering authority among various groups and by giving individual aristocrats the right to initiate discussion, the Romans made defining impiety a

complicated business requiring the participation of a large section of the aristocracy—

which is just how Roman nobles wanted every aspect of community life to function.

As a result of the statement by the pontiffs and Vestals, the focus of the dispute

changed. Though the public struggle over Clodius’ pietas continued, the central issue

was no longer whether it was impious for a man to be present at the rites to the Good

Goddess. Instead, the focus of the conflict shifted. Now the debate would center around

what responsibility, if any, the community had to punish an act of impiety and whether

the man they suspected was actually guilty of the crime.

The Senate Decides

Once the pontiffs and Vestals had made their ruling, it was up to the senate to

decide what to do next. The senate did not have an easy decision, and the complexities of

their problem illustrate how public disputes that centered on an individual’s pietas

became intertwined with political issues, ranging from petty personal hostilities between

99 Roman aristocrats to larger issues involving the authority of the institutions that governed

the community. I

The ruling of the college justified doing nothing as much as it justified taking

action against Clodius. Impiety was not a crime. Furthermore there were numerous

impediments, some institutional, some extra-institutional, which hindered further

action.206 Clodius came from a revered and respected Roman family; his elder brothers

Appius Claudius (cos. 54) and Gaius Claudius (pr. 56) were rising politicians with

powerful connections.207 Clodius himself had a lot of support outside of the aristocracy,

which he mobilized soon after the senate passed the consultum calling for the establishment of a special court.208 In addition, there was no traditional procedure for

dealing with activities like those of Clodius. His actions violated no obvious law. Those

who wanted to use legal means to punish Clodius would have to find a crime to charge

him with and set up a special court in the teeth of fierce opposition from him and his supporters. Clodius demonstrated his political skill soon after the senate’s decree by weakening the resolve of the most prominent senators through sorrowful entreaty. Even

Cicero began to soften his line after Clodius’ performance. 209

Given these obstacles, why did the senate press for a trial? The sources suggest a number of possible explanations. It is best not to take a reductionist approach that tries to

206 Tatum (1999), 67-72.

207 According to Dio Cass. 37.45 Caesar realized that Clodius’ powerful friends made an acquittal inevitable, and thus refused to jeopardize his political career by testifying against him.

208 ‘operae comparantur.’ Cic. Att. 13 (I.13).3.

209 ‘boni viri precibus Clodi removentur a causa.’ Cic. Att. 13 (I.13).3.

100 find the one ‘real’ reason that prompted the senate to pass a consultum setting up a

quaestio extraordinaria. A variety of complementary reasons pushed the senate to keep

the Bona Dea affair alive in spite of the apparent opposition. Contests over pietas

involved a number of complicated interactions between individual and community and

between the various institutions that comprised the res publica.

First, Clodius had powerful enemies who would enjoy the derailing his career just as it was beginning.210 Cornificius had provided an opportunity that these enemies

quickly grasped. Tatum argues that “[i]n the end, the clash over Clodius’ future had little to do with religion, as Balsdon rightly saw. The issue quickly gave way to private feuds which, lacking adequate heft, soon exaggerated their gravity by adding to themselves the rhetoric of political principle.”211 Scheid concurred, arguing that Clodius was tried not

for any religious reasons, but among other things because the decision-making process

which led to Clodius’ prosecution was highly politicized.212

We should not, however, reduce the Bona Dea affair into just another fight

between groups of Roman politicians. I am not going to deny that personal enmity and

polictical maneuvering played a role in the decision to try Clodius. However, if we distill

Balsdon’s and Tatum’s argument down, the reductionism becomes apparent: Clodius was

put on trial because he had political enemies. Of what late republican politician could

this not be said? Inimicitia in and of itself tells us nothing, since it can be used to explain

210 Balsdon, (1966), 68-69;Rundell (1979), 303; Tatum (1999), 73-74.

211 Tatum (1999), 74.

212 Scheid (1981). 132.

101 the cause of many Roman trials. A large number of trials had political components, since

politicians used the courts to settle political scores and make a name for themselves.213

Personal rivalry with Clodius might have motivated some senators, but not the majority of senators, to bring Clodius to trial. Inimicitia was only one factor in the senate’s decision.

The Catlinarian conspiracy may have influenced many senators to prosecute

Clodius. In December, 63, almost exactly a year before Clodius had slipped into

Caesar’s house, the senate took a tough line against Catline’s followers, voting to execute the most prominent among them. The successful show of strength against a recalcitrant politician seemed to be a triumph of the best elements in the city and a victory for the

Roman aristocracy as a whole. Furthermore, Catiline’s public image was characterized by aberrant moral behavior reminiscent of the lack of respect for the mos maiorum displayed by Clodius in December 62.214 In the post-Catilinarian era many senators would be sensitive to scandals caused by their blue-blooded fellows and would wish to

maintain the reputation of the order as a whole. Just as the senators had shown resolve

when faced by Catiline, a senator of praetorian rank and long career, they would take a

firm stance against Clodius, a junior politician with a much less impressive career. Even

though Clodius had several important senatorial allies, he was facing an order of men

213 Gruen (1968 and 1974), passim; see also Epstein (1987), 90-126. Alexander (1993) has provided an important reminder that while trials did have a political component, not every Roman politician had to fight his way up to the top of the ladder through a series of court appearances. Being hauled in front of a jury was not necessarily frequent, but it occurred often enough that every politician had to keep in the back of his mind the possibility that he would be hauled into court by an enemy.

214 See, e.g. Cic. Cat. I.13-14; Sall. Cat. 5, 15-16.

102 who were feeling their oats and who were determined to demonstrate that they could

punish aristocrats whose immoral behavior undermined the prestige of them all.

Lest we lose ourselves in the political, careful analysis demonstrates that moral

and religious factors also played an important role in the senate’s attitude toward Clodius.

While the boni might have softened in the face of Clodius’ influence, Cato did not.215

This might be ascribed to political reasons, but given Cato’s life and career, moral

considerations explain his involvement more convincingly. Cato was not the only one

outraged. As we have seen, Cicero himself initially reacted with anger and expected

Atticus to have a similar reaction. And we must remember it was not one of Clodius’

known inimici who pressed the senate to look into the affair. It was Q. Cornificius, whose interest is most easily explained not by political interest but by moral and religious outrage. Clodius had senatorial allies and personal enemies, but the majority of the senate probably did not have strong feelings one way or another about Clodius himself before the affair began. His personally embarrassing behavior, however, had ruptured the pax deorum and had thus jeopardized the whole community. Many senators would have liked to put a stop to the kind of unprecedented and objectionable behavior displayed by

Clodius, and making an example of him would be a nice lesson for future aristocrats who let prurient curiosity overcome their sense of civic responsibility.

The determination of most of the senate to prosecute Clodius stiffened after

Clodius began to use violence to prevent a special court from being established. The

Bona Dea affair, like so many others in ancient Rome, suffered a case of ‘issue creep’.

215 Cic. Att. 13 (I.13).3.

103 On its face it merely concerned the impiety of a roguish young noble, but, because of the

players involved, it could not help but expand into something larger. In the end, it turned

out to be (or, rather, its protagonists turned it into) a conflict where the authority of the

senate was at stake. The senate was more than just a deliberative body. It oversaw the

state cult and had a responsibility to see that the cult operated properly. We have already

seen the long list of reasons for letting the matter drop: Clodius’ friends, uncertain legal

grounds, and potential disruptions by Clodius’ bands of followers. Yet in spite of this,

the majority of senators voted for a senatus consultum that called for Clodius to be tried,

and once they did so, they raised the stakes. If Clodius could prevent the assembly from

implementing the senate’s decision, the authority of the senatorial order as a whole would

be undermined. At least, that is how many senators saw things. Cicero makes this clear

in letter 16, written to defend his performance at Clodius’ trial. Cicero claims to have

opposed Clodius vigorously ‘quam diu senatus auctoritas mihi defendenda fuit.’216

Clodius’ own actions raised the stakes even more. There is a stark difference in tone between Cicero’s attitude toward Clodius in late Janurary and his attitude in mid-

February. In January Clodius had begun to win over many of those who had been appalled at his behavior; he had even begun to mollify Cicero.217 At this point Clodius’

political sense failed him, because at the same time he was putting on displays of remorse

in the senate he was rumored to be preparing bands of followers.218 These rumors proved

216 Cic. Att. 16 (I.16).1. Even earlier Cicero had worried that the Republic could be damaged if the boni did not act with more firmness against the improbi. See Shackleton Bailey’s reconstruction of a difficult passage in Cic. Att. 13 (I.13).3.

217 Cic. Att. 13 (I.13).3.

218 ‘operae comparantur’, Att. 13 (I.13).3. 104 to be true, as subsequent events showed.219 Clodius was preparing to fight his battle in the

assembly if he lost it in the senate. We should not be surprised at this, since, as we saw in

the last chapter, conflicts over pietas shifted from one venue to another as the various organizations with religio-political authority in Rome grappled with how to resolve the conflict. The mobilization of gangs demonstrates that Clodius had the means to respond in various ways to the threats against his career. From his point of view, he was not going to simply lie down and let the majority of senators decide his political fate. From the point of view of many in the senate, however, Clodius was preparing to defy the senate’s authority, and his tactics may have cost him support there. In early February, after passage of the senatus consultum, he openly resorted to violence to stop the senate- endorsed rogatio from becoming law. Consequently in the space of a few weeks he had lost all of the ground he had gained: a near-unanimous senate passed a bill exhorting the

Roman people to set up a special court to try him.220 Because he so blatantly resorted to

extralegal political tactics to stop the senate’s rogatio from becoming law, Clodius helped

to enlarge the scope of the struggle; it was no longer solely about his own pietas but

about the senate’s auctoritas. This forced many senators do dig in their heels and rally

around Clodius’ enemies.

219 By February he had assembled a mob of thugs to intimidate people in the assembly: Cic. Att. 14 (I.14).5. Rundell (1979), 303 suggests that the operae mentioned in Att. 13 (I.13).3 and in 14 (I.14).5 were identical to the barbatuli iuvenes of Att. 14 (I.14).5. He thus concludes that the Bona Dea affair need not be analyzed from “the ‘popular’ angle”at all, and that we can understand the affair solely from the perspective of aristocratic infighting. I must reject his conclusions. While Att. 13 (I.13).3 might give no conclusive answer as to the social class of Clodius’ operae, in Att. 14 (I.14).5 Cicero seems to distinguish between two different groups. The ‘barbatuli iuvenes’ are asking the assembled crowd to reject the motion (populum ut antiquaret rogabant). The operae, on the other hand, appear to have taken control over the pontes and are distributing tabellae without any options for voting ‘yes’. Since these groups seem to be doing two different things, we have to conclude that the operae were not the young aristocratic supporters of Clodius.

220 Cic. Att. 14 (I.14).5.

105 Another immediate concern influenced the senate’s decision to remain firm.

Pompey was coming. The powerful general had reached Italy a few months earlier and,

contrary to everyone’s expectations, had laid down his army. He thus spared the senate

the immediate fear that he would return from fighting Mithridates the same way Sulla had

20 years earlier—by marching on Rome and making himself its master. Instead of

returning as a potential dictator he returned as ‘merely’ the most powerful and influential

individual politician in the city.221 The senate had an incentive to make an example of

Clodius, showing Pompey and other potential principes that it could and would act to curb outrageous and dangerous behavior by the Roman aristocracy. Pompey seemed to sense what the nervous senators in Rome wanted to hear and understood the issues at stake in the struggle to prosecute Clodius. He arrived in January 61, and when Fufius called him before a contio and asked his opinion about the text of the senate’s consultum regarding the establishment of a special court to try Clodius, he gave a long speech defending senatorial authority.222

The Charge of Incestum

A vexing problem presented itself to the senators who were determined to see

Clodius punished. They had no clear grounds on which to indict Clodius. There was no

standing court for ‘breaking and entering,’ and the resident of the house that Clodius

sneaked into wanted the whole affair to go away. This meant that if the senate wanted to

punish Clodius for sacrilege it would have to come up with a crime for which he could be

221 On the return of Pompey and its impact on Roman politics (and the Bona Dea affair) see Seager (2002), 75-79.

222 Cic. Att. 14 (I.14).2.

106 charged. One possibility was maiestas, a catch-all term for anyone who jeopardized the

welfare of the state; another was perduellio, a term for treason. P. Claudius Pulcher had

been tried for perduellio in 249, after a naval defeat; among the charges which were

leveled at him was that he had violated the pax deorum by ignoring the auspices.223 There was thus some precedent for using perduellio in cases where religious violations had occurred. There was a problem here, however; Claudius’ actions in 249 had already led to disaster for the state, whereas the actions of his namesake had as yet not had any negative consequences. Of course, this argument could have been used (and probably was) to dissuade the senate from taking any action at all. In the end, the senate decided against trying Clodius for maiestas or perduellio, and instead chose the crime of incestum and ordered the consuls M. Pupius Piso and M. Valerius Messalla to bring a rogatio before the assembly that called for an extraordinary court to be set up.224

So far as we can tell, before 61 B.C. Clodius’ actions could not have reasonably

defined as incestum. Incestum as a crime was restricted either to people who had

intercourse with close relatives (which Clodius was often accused of, but which had no

bearing at all in this case) or to Vestal Virgins (and their lovers) who had violated an oath

of chastity.225 Clodius was never even accused of the latter crime; as the sources

223 See my discussion on this incident above, pp 47-48. On the crimes of perduellio and maiestas, see Pesch (1995), 43-143; De Castro-Camero (2000), 28-32.

224 Schol Bob. 89 St.; Val. Max. 8.5.5.

225 For a general discussion of incestum see Cornell (1981).

107 indicate, he had been caught before accomplishing whatever he intended, and the

rumored object of his affection was Pompeia, not a Vestal Virgin.226

Though incest does not at first glance seem applicable, in many ways it was the

most reasonable crime to charge Clodius with, once the senate determined that it needed

to take some legal action. Though Clodius had not actually violated one of the Vestal

Virgins, he had interrupted one of their sacred rites carried out pro populo—with the same potential danger to the state that someone caused when he violated the chastity of a

Vestal Virgin: a rupture in the pax deorum. As an additional convenience, the prosecution gained a number of advantages in incest trials, including the right to interrogate slaves and the ability to try magistrates without waiting for their year of office to expire.227

The application of the charge of incestum shows the flexibility of the Roman civic

system and of the senate’s response. As it had done when it had consulted the college of

pontiffs and the Vestals, it handled a new problem by adapting an old solution. Once the

senate decided that Clodius should be punished, it applied the charge that seemed most

likely to fit—since the Vestal Virgins had, in a sense, been molested, the senate decreed

that a special court be established to investigate a charge of incestum. And, of course,

this too had precedent, since in 114 B.C. the Lex Peducaea had established a special court

to try Vestals and their lovers on the charge of incestum when the college of pontiffs

226 Moreau (1982), 94.

227 Moreau (1982), 95-96 and Tatum (1999), 74-75.

108 seemed to be too lenient.228 The senators drew on precedent to guide their actions, but

they did not allow precedent to render the senate impotent. The senate essentially

decided to expand the public definition of incestum to include violating the rites of the

Bona Dea,229 and this was an innovation, even if its proponents could make a logical connection between incestum as it had been previously defined and Clodius’ behavior.

Like so many other contests over pietas, public procedures evolved as Roman institutions

adapted traditional solutions to new circumstances.

The Fight against the Rogatio Pupia Valeria

Of course, what to some might seem a clever and flexible approach to handling

Clodius’ behavior might seem to others like trying to fit a square peg into a round hole.

Clodius and his supporters were infuriated by the terms of the rogatio proposed by Piso

and Messalla. Significantly the consul Piso and the tribune Fufius aided Clodius’ attempt

to stop the creation of the quaestio extraordinaria; Piso took the unusual step of opposing

his own motion. The particular sticking point Clodius seized upon was the composition

of the jury. Instead of the traditional practice,230 the rogatio allowed the praetor who

presided over the court to choose his own jury.231 Clodius perceived that this would, in

effect, turn the contest over his pietas into no contest at all: such a jury would be stacked

against him.

228 Cic. Nat D. 3.74, Brut. 122, 159, Inv. 1.80; Asc. 45-46 C.; Obseq. 37(97); Oros. 5.15; Plut. Quest. Rom. 83; Porphyrio ad. Hor. Sat. 1.6.30; Dio Cass. frag. 87.5; Macrob. Sat. 1.10.5.

229 Moreau (1983), 95.

230 Roman Jurors were chosen from a pool of senators, equites, and tribunii aerarii and ‘selected by a mixture of allotment and rejection by the parties.’ Lintott (1999), 160.

231 Cic. Att. 14 (I.14).2. 109 The novelty of the senate’s approach to dealing with a new problem inevitably brought out criticism by those who resisted novelty and resented change. Clodius, in

fact, challenged his opponents on the issue of tradition, a clever defense given that his

opponents were chastising him for his untraditional behavior at a civic rite. So far as we

can tell, Clodius did not attack the right of the pontiffs to define his behavior as impious

or the right of the senate to set up a special court to try him. Instead, he and his allies

attacked his opponents for being untraditional and emphasized the novelty in the

procedure established to try him. The position of the elder Curio, who supported Clodius

throughout the affair,232 may be attributable not to his resentment of the politicization of

religion, as McDermott argued,233 but to his dislike of novelty in public practice. It is

even possible that Q. Fufius Calenus’ support for Clodius stemmed not from personal

friendship or political loyalty to the quaestor but from opposition to the senate’s tactics as

it tried to punish Clodius. If he had desired, Calenus as tribune could have stymied any

attempt to punish Clodius. However, during the entire process he exercised his veto only

once: to prevent the senate from passing a decree encouraging the people to ratify the

rogatio Pupia Valeria.234 He also withdrew his opposition to prosecuting Clodius once

232 McDermott (1972), 397-404.

233 “Perhaps he [Curio] felt early in 61 that the senate and the pontifices were using religion too openly as a political weapon.” McDermott (1972), 404. Such statements reflect the general trend of the era’s scholarship, which divided Roman civic life into religious and political spheres and saw any overlap of the latter into the former as corruption.

234 Cic. Att. 14 (I.14).5.

110 the terms of the rogatio were changed to allow the traditional method of selecting a jury.235

It is thus misleading to categorize the fight over the rogatio as simply a squabble between two factions, one resolved to destroy Clodius, the other to acquit him. Had

Calenus and Piso been resolved to see Clodius freed they could have prevented any attempt to prosecute him, but they did not do so. They allowed a trial to take place once the traditional means of jury selection were restored. The actors in the drama were thus motivated by real differences over the procedure used to try Clodius. Though most of the senate236 wanted to allow a new procedure that let the presiding praetor choose his jury, a resolute minority was determined to oppose this, not necessarily to prevent Clodius from being brought to trial but to prevent a new form of jury selection from being used.

Though the senate as a whole supported treating a new situation with a new remedy, the stubborn opposition of a few determined senators convinced Hortensius that the only proper way to bring Clodius to trial was to use the older method of choosing jurors.

The fight to bring Clodius to trial thus illustrates the pattern we observed in chapter one. A religious infraction led to a new situation, one where tradition offered no guidance on how to resolve the problem. A debate occurred over how to deal with the situation. The Romans hit upon a solution, Roman religious and political procedure evolved, and civic life continued. The dispute over the rogatio Pupia Valeria pitted one

235 Cic. Att. 16 (I.16).2.

236 400 senators (vs. 15 nays) and nine out of ten tribunes supported the bill that had the new system of jury selection, if Cic. Att. 14. (I.14).5 can be believed.

111 group of senators against another when a new procedure piqued the sensibilities of

traditionalists.

The conflict over the rogatio Pupia Valeria illustrates yet again that the structure

of Roman civic institutions resulted in contests over piety being waged in a number of

different venues. In this case, once the senate had decided on a course of action and on

the procedure that should be followed, the struggle was far from over: the assembly

would have to pass the senate’s bill before a trial could take place. In an earlier era the

senate could confidently expect that an assembly would follow its lead and endorse any

rogatio approved by a majority of senators, but in the late Republic assemblies were

more and more willing to ignore senatorial recommendations.237

The multitude of venues provided the maximum possible scope for participants in a conflict to employ their political skills: if they were at a disadvantage in one arena they

might be able to check their opponents through skillful operation in another. Before the

senate Clodius was hopelessly outvoted, but he had a positive genius for getting the

assembly to do what he wanted. During his career he relied as much on his talent for

organizing rowdy mobs as he did on his skills of persuasion, and he got off to a running

start in this, his first major legislative battle. He arranged to have only ‘no’ ballots

distributed to the voters and stationed gangs on the pontes leading to the ballot-urns in

order to intimidate voters who might be inclined to find ‘yes’ ballots and vote against

him.238 It is impossible to say what the verdict of the assembly might have been had a

237 Mouritsen (2001), 131-132; see also Millar (1998), 13-48.

238 Cic. Att. 14 (I.14).5

112 vote on the original rogatio of Pupius and Valerius been taken, because the vote was

called off and the issue was brought back into the senate for more discussion, where a

large majority of senators voted to reiterate the senate’s support of the rogatio and to

return the bill to the people for consideration.239

Clodius’ tactics reflect, unfortunately for the civic health of the Republic, the

political practice of the first century. We should not let his unscrupulous abuse of the

assembly divert us from the relevant point: the assembly was yet another civic institution

with authority over religious matters, and no matter how many senators were aligned

against him Clodius could still wage his battle there. In republican Rome the senate

proposed, but the assembly disposed,240 and if Clodius could get the assembly to support

his case, it did not matter if all of the other senators and magistrates opposed him.

The dispute over the rogatio Pupia Valeria shows the importance of consensus in deciding religio-political disputes. In any system which had so many and varied sources of authority and so many ways to gridlock itself, compromise was vital for any public business to get done. In this case, the gridlock was removed only after all conflicting sources of authority got onto the same track. Two individuals, Hortensius and Fufius, worked out a compromise which, in spite of Cicero’s opposition, received the support of the senate and was passed by the assembly. In a situation like this there were tremendous pressures for Clodius and Fufius to compromise. The aristocracy, according to Cicero,241

239 See note 80, above.

240 Lintott (1999), 40-42.

241 Cic. Att 14 (I.14).5.

113 was virtually united in its determination to set up a quaestio and was willing to shut down all public business, including the all-important allotments of provinces, until Clodius and his supporters ended their obstructionist tactics and allowed a bill to go through. Cicero hints at another reason why Clodius might be willing to end the impasse and risk a trial: so long as there was no resolution to the affair, his enemies could use the potential of a trial to harm his career.242 The longer the trial was delayed the longer the issue remained in the public eye, and the longer the issue dominated public discussion the more difficult

Clodius’ political position would become. So Clodius himself might be seeking a trial, provided he stood a chance of defending himself.

There were also pressures on Hortensius to compromise. Cicero’s suggestion that the process be delayed was not practicable given that the senate had decided to shut down public business until the assembly considered a rogatio.243 Though this put pressure on

Clodius, it was not a tactic which lent itself to undue procrastination, since in the long run

shutting down all public business could backfire if enough aristocrats grew irritated at the

tactic. If Hortensius lost the support of his fellow senators, and the senate abandoned its

own obstructionism, all the momentum to punish Clodius might evaporate. Furthermore,

Fufius presented a very difficult obstacle to get around. If he could not be induced to step

aside he could, through his veto, block any attempt to pass legislation to try Clodius, and

it seems Fufius was implacably opposed to allowing the creation of a court where the

presiding praetor chose his own jury. Furthermore, it did not help Hortensius’ cause to

242 Cic. Att. 16 (I.16).2.

243 Cic. Att. 14 (I.14).5.

114 have to deal with a hostile Piso. Having the consul himself attack his own legislation

undermined the credibility of both the bill and the senate in the eyes of the assembly. A

compromise would remove the opposition of both Piso and Fufius and allow Clodius to

face a jury.

Therefore the resolution of the fight over the rogatio Pupia Valeria demonstrates

that contests over piety required complex interactions between individuals and groups to achieve resolution, a phenomenon which we observed in the last chapter. This phenomenon was caused by the complex structure of Roman civic life, which entrusted political and religious authority to different groups and institutions. In this case, it was

two individual but influential men who brought about a resolution to the conflict. Fufius’

veto power made his assent indispensable to any prosecution of Clodius. Hortensius’

authority over these matters rested on no institutional basis. It was instead his influence

over his fellow senators and his ability to negotiate with his fellow aristocrats which gave

him a role in the affair. Together they managed to bring about a solution which was

accepted by most of the aristocracy (though, as Cicero’s reaction indicates, not by every

aristocrat). Once the senate had achieved a consensus and was able to present a united

front to the populus, the populus in turn was able to meet and authorize the establishment

of a quaestio. And again, this ‘resolution’ did not end the contest, it merely shifted it into

another venue.

Clodius’ Defense

Roman criminal procedure did not require that the participants confine their

discussion to facts relevant only to the stated charge; orators could cast their nets widely

115 and attack every aspect of their opponents’ lives as a means of undermining their

credibility.244 Curio spoke as Clodius’ chief defender, and so far as we can tell from our

sources, the defense was a simple one. Clodius argued that it was impossible for him to

have sneaked into Caesar’s house, since on the day of the festival he was ninety miles

away at Interamna.245 In other words, in spite of all of the evidence and the testimony of

Caesar’s mother and sister, it was not he who was caught at Caesar’s house and chased

out. This is a surprisingly weak defense, given the combined testimony of Caesar’s

relatives and of Cicero, who testified that he himself had observed Clodius in Rome the

morning before the festival when Clodius arrived to greet him at his daily salutatio.246

The significance here lies in what Clodius did not try to argue.

Clodius never tried to argue that he was at the festival, that his presence was acceptable, and that his actions did not endanger the state. Perhaps this was wise, given

the stated opinion of the pontiffs and Vestals that violating the festival was nefas, and it

illustrates how the community could establish a definition of pietas/impietas. We saw in

chapter two that there was no clear-cut dividing line between piety and impiety, but

misunderstandings were possible, opinions might differ, and ultimately the line would be

established by communal consensus, which, of course, did not necessarily end the debate.

Clodius decided that it would be fruitless to argue that he had been in Caesar’s house but had not acted impiously, which indicates that he perceived that the communis opinio,

244 Moreau (1982), 167-194 discusses the potential topics Clodius’ accusers might have brought into play.

245 Cic. Att. 21 (II.1).5; Schol. Bob. 21 St.; Asc. 9 C.; Plut. Cic. 29.1. He had as his chief witness a friend and local notable of Interamna, C. Causinius Schola.

246 Cic. Att. 16 (I.16).2, 21 (II.1).5, Dom. 80; Schol. Bob. 85, 89 St.; Suet. Iul. 74.4; Quint. 4.2.88.

116 combined with the institutional weight of a priestly college and the senate, had effectively

drawn the line: a man appearing at the rites of the Bona Dea was definitely an impious act. It would be pointless to argue that he had been present at the rite but had not acted impiously. The system would not have prevented him from arguing the point, but it had already made it unlikely that he would have won over many of his fellow citizens to his point of view.

The Trial

Clodius did not present the strongest defense. This would have boded ill for him, had the outcome of Roman criminal courts depended only on the strength of the cases presented. But Roman trials were as much spectacle as they were logical argument, and

Clodius still had weapons in his arsenal. He had a vocal following among the assembled crowd,247 so in spite of the apparent weaknesses of his case he was able to persuade many

of his fellow citizens to support his cause. At his trial he formed them into a rowdy, obnoxious mob that heckled his opponents. Clodius’ tactics were not just designed to intimidate the jurors; they were designed to show them that many of their fellow citizens had refused to accept the allegation that Clodius had committed an impious act.248

Roman aristocrats measured each other’s influence within the community partly through the number of ordinary citizens whose support each noble could command: aristocrats who could garner more supporters at their morning salutationes and their strolls through

247 Cic. Att. 16 (I.16).4. Millar (1998), 41 points out that one of the factors that influenced the jury’s decision in trials was the reaction of the crowd which surrounded the tribunal on which the orators spoke.

248 Note there is not a contradiction with the argument in the previous section. The community’s chief religious institutions did decide that it was impious for a man to appear at the rites to the Good Goddess; but the community as a whole had not yet decided that it had been Clodius who had committed an impious act.

117 the forum, and those who could get the largest cheering sections at their contiones, were

presumed to have a lot of influence over the Roman voter.249 Through this display they

earned more respect from their fellow aristocrats. That Clodius had a large number of

vocal supporters present reminded the jury that the charges against him had not

significantly damaged his prestige and influence, which gave the jury an incentive to

acquit him.

Of course Clodius choose to rely neither on the merits of his defense nor on a

demonstration of his support among the populus Romanus: he took the additional step of

bribing the jury.250 This too shows how resourceful individuals could be while they were engaged in conflicts over pietas, though in this case Clodius chose to rely on an unusual,

extra-legal method to win over the jury. Yet bribing the jury did solve Clodius’

immediate problem: another phase of this contest over piety came to an end. He was

acquitted, and so far as Roman civic institutions were concerned, the matter was over.

Clodius was not just judged ‘not guilty’ by the Roman system, he was judged ‘not

impious.’

Resolution?

Of course, the debate over Clodius’ pietas did not end with his acquittal. The

court, empanelled according to a law of the Roman people, might arguably have given

the verdict of the community as a whole, but there were plenty of individuals who were

outraged at the outcome and who were determined to use Clodius’ behavior at the festival

249 See for example Comm. Pet. 37, where ‘Quintus’ urges his brother to be seen with as large a crowd as possible around him.

250 Cic. Att. 16 (I.16).5.

118 of the Good Goddess against him. Cicero in particular delighted in reminding the

Romans of Clodius’ scandalous and disreputable behavior, and the Bona Dea affair

usually took center stage.

Cicero did not wait long to use the weapon against Clodius. In a speech before

the senate on May 15, 61, which probably more than anything else made Clodius his

bitter enemy, he denounced Clodius and Curio. Fragments of this speech, the In Clodium

et Curionem, survive in the Bobbio Scholiast. The fragments indicate that Cicero took

great delight in mocking Clodius for being willing to dress up in a woman’s clothes and

commit acts of impiety in order to facilitate an adulterous affair.251 In response, Clodius stood up and tried to defend himself. He claimed that Cicero had been at Baiae. Cicero gleefully wrote Atticus the stinging reply he gave: ‘are you saying that that is similar to being in a secret place?’,252 alluding to Clodius’ violation of the rites.

Cicero did not let the matter rest. After he returned from exile he waged a bitter

struggle to recover the property that had been lost under the terms of the lex de exilio

Ciceronis. Speaking before the college of Pontiffs he used Clodius’ impiety as a weapon

against him, to undermine his credibility in the eyes of the college.253 The year after his return an earthquake occurred, which the senate concluded portended something ominous for the safety of the republic. To ascertain what the portent signified, the senate consulted the college of haruspices. The haruspices responded with a lengthy

251 Schol. Bob. 85-89 St., in particular frags. 5, 12, 19 and 22.

252 ‘quid? hoc simile est...quasi in operto dicas fuisse?’ Cic. Att. 16 (I.16).10.

253 Cic. Dom. 35, 77, 105.

119 pronouncement indicating one of the reasons for the displeasure of the gods was the

desecration of sacred places. In a speech before the senate, Cicero accused Clodius of

being responsible for the gods’ displeasure because he had violated the rites to the Bona

Dea.254

Cicero found that he could use Clodius’ reputation for impiety as a weapon not

just against Clodius, but also against Clodius’ political allies. In 55 B.C. in a speech

denouncing L. Calpurnius Piso, consul in the year of Cicero’s exile, he tried to taint Piso by pointing out his known friendship with Clodius, who, according to Cicero, everyone knew was guilty of incest, implying that no really respectable citizen would associate with such a man.255

Cicero even exploited Clodius’ impiety to deflect criticism of his own public

behavior. In a famous letter to P. Cornelius Lentulus Spinther, Cicero defended his

working on behalf of Pompey, Caesar, and Crassus, who were despised by many

aristocrats in the 50s B.C. because they dominated Roman politics, by reminding

Spinther of how Clodius had driven him into exile and how Pompey had interceded to

bring him back to Rome. To make his enemy seem as dastardly as possible, Cicero

accused Clodius of incestum, and not just of the kind of incest of which he was acquitted.

He claimed that Clodius had shown the Good Goddess no more respect than he had his

three sisters.256

254 Cic. Har. resp. 4, 8-9, 12, 38, 44, 57. I will discuss the debate over the meaning of the response of the haruspices in more detail in chapter five.

255 Cic. Pis. 95.

256 Cic. Fam. 20 (I.9).15.

120 Even Clodius’ death did not prevent Cicero from exploiting his reputation for

impiety for his public benefit. After Milo’s followers killed Clodius in 52 B.C., Milo,

charged de vi, called upon Cicero to defend him. Cicero was too scared to deliver his

speech, forcing Milo to admit defeat and go into exile. Even though Cicero never

delivered the speech, he had the amazing gall to circulate a text of the speech that he

would have given, had he bothered to defend his client. The Pro Milone, which would

have been an excellent speech if Cicero had had the courage to deliver it, uses Clodius’ nefarious career as a tool for defending Milo. In it he made certain to remind the fictional jurors that Clodius had violated public rites to the Good Goddess.257

Thus the conflict over Clodius’ piety did not end with his acquittal. Once again, the public debate remained; only the issues changed. After the trial Clodius did not have

to fear that the community’s institutions would punish him for his act of impiety.

However, his acquittal did not remove the stigma attached to his actions, and he would

always have to endure stinging reminders of his conduct. He had, in a sense, made his

pietas a key part of his public image, and he would have to defend it for the rest of his

career.

Conclusions

The Bona Dea affair reveals much about how the Romans made pietas a political

issue, how public disputes over a person’s pietas were handled, and how difficult they

were to resolve.

257 Cic. Mil. 72-73, 86.

121 Because Roman civic religion was intertwined with every aspect of public life,

when Clodius’ pietas became a public issue, the issue did not and could not remain solely

a religious one. Clodius’ personal enemies used the controversy as an excuse to damage

his career, many senators came to believe that the auctoritas of the senatorial order was at stake, and recent history and current political events soon played a role in the battle to convict Clodius for violating the rites to the good Goddess. Attempts to reduce the struggle to merely a factional dispute miss the complexities of the problem.

The structure of Rome’s civic institutions, which placed authority over religious issues in the hands of a large number of different individuals and groups, also complicated the process of resolving public disputes which centered on pietas as a key issue. Clodius was almost not brought to trial because of an impasse between the majority of the senate and a few key magistrates. In the Roman system, various authoritative institutions had to reach a consensus through compromise before they community could give its verdict about Clodius’ piety. In this case the senators who wanted to put Clodius on trial and the consul and tribune defending him had to compromise. Fufius stopped obstructing the creation of a special court and Hortensius modified the terms of the rogatio creating that court. The move to try Clodius reveals that late republican politicians were still capable of reaching such compromises and achieving consensus, in spite of the fact that the first century was more famous for occasions when the Roman system gridlocked and shut down than for the ability of its political leadership to work through the difficult process of making politics work.

122 The process of trying Clodius forced the Romans to decide whether a man’s presence at the rites was an impious act, whether the state had any responsibility to pursue the matter, what was the proper charge on which to indict Clodius, what composition his jury should take, and whether to convict or acquit him. It is amazing given the complexity of Roman civic structure that answering all of these questions took only a few months. Even after all these questions were answered, the issue was not really resolved. Only the institutional involvement in the question was ended. No further attempt would be made by the Roman state to punish Clodius for his crime. However,

Clodius’ pietas never disappeared as a political issue. His enemies would always be able to use the Bona Dea affair as a weapon to undermine his credibility with his fellow citizens.

123

CHAPTER 4

THE DISPUTE OVER CICERO’S HOUSE

As we saw in chapter two, public contests involving pietas often occurred when

there was a dispute over whether a religious ritual had been properly conducted. Pietas

became an issue in such contests because piety required the complete fulfillment of all

obligations owed to the gods, and in any situation where a rite was improperly conducted,

an obligation was unfulfilled, since the gods would not accept a flawed offering.

Furthermore, such conflicts usually arose in situations when there was some uncertainty

about exactly what the Romans had to do to fulfill their obligations. In most cases, they

could simply meet any such obligation by the proper performance (or re-performance) of

ritual. Thus the Romans’ ritual process had a built in system for correcting error that

prevented reckless assignations of blame and charges of impiety.258 But in situations

where something unexpected occurred, the structure of Roman civic life and the nature of

Roman religion often encouraged public debate and conflict. In situations like this the fragmented nature of religious and political authority meant that the conflict over how to best fulfill the community’s obligations to the gods was resolved only after much

258 Rosenstein (1990), 59-63.

124 discussion among the many individuals and groups which possessed that authority.

Sometimes this fragmentation of authority meant that a conflict died out very slowly, as

aggrieved parties found forum after forum in which they could state their case.

The paucity of our sources limits our ability to analyze most of these conflicts in any detail, but this is not the case with our present topic, the struggle over Cicero’s house.

Here we are not limited to one or two lines mentioned in passing by an annalist. Instead,

we have real primary sources, including a complete speech before a religious body and

letters reporting events almost as they occur. Because the speech and letters are those of

Cicero, one of the two parties in the conflict, they naturally tend to present things from

only his point of view, but we can reconstruct the arguments of his opponent Clodius

because Cicero responded to them point by point, sometimes even quoting them. Thus

we have more than just the bare outlines of the conflict: we can see what arguments each

side gave to his fellow citizens to defend his position, and we can see how their dispute

snaked its way through Rome’s complicated civic hierarchy.

Yet having additional information does not require us to substantially modify the

conclusions obtained in chapter two; instead it reinforces them. The dispute over

Cicero’s house allows us to see once again that religious disputes in republican Rome

could become quite complicated. This particular battle between Cicero and Clodius, for

instance, was fought before the senate, before Rome’s populace, and before Roman

religious officials. In this case, the debate did not end when the community’s leaders

pronounced the ‘official’ verdict. Moreover, this dispute illustrates again that it was not

always immediately obvious to the Romans what constituted pious or impious behavior.

125 Even though their claims were diametrically opposed, both Cicero and Clodius had very

strong arguments, so it was not a simple matter to determine whether Clodius had acted

piously when he dedicated the site of Cicero’s house to the goddess Libertas. Finally, as

we observed in chapter two, we will see that conflict led to evolutionary change in

religious procedure. The struggle over Cicero’s house shows how flexible and adaptive

the Roman religious system was.

Of course, having such a detailed account also gives us new insights into the

connection between religion and politics in republican Rome. In this case, we see how

religion provided another means for the Roman aristocracy to send messages to their

fellow citizens, both supporters and enemies. Through Cicero’s speeches and letters we

can see how Clodius’ temple acted as a form of communication. One of the reasons why

Clodius put up such a strong fight to save the temple, and Cicero such a strong fight to remove it, was that each wished to control a vital means of communication in a world without mass media. The temple of Liberty thus illustrates how a Roman could make an act of personal and civic piety (the dedication of a temple) serve a political agenda.

We also see that the process of deciding whether to allow the temple to remain was not a trip through the minutiae of Roman religious law, nor was it an entirely political issue where the pontiffs exploited their religious authority solely to send a political message. Instead, the pontiffs evaluated every aspect of Cicero’s and Clodius’ civic lives while making their decision, and an integral part of this evaluation was an analysis of their pietas.

126 Cicero and Clodius from 62-58 B.C.

The careers of Clodius and Cicero took divergent paths in the years following

Clodius’ trial for incestum.259 Cicero failed to obtain the respect and prestige that he

thought his consulship had earned him. He believed that his suppression of Catline’s

conspiracy would serve as a blueprint for the renewal of the republic. So long as Rome’s

elite, both senate and equites, remained united, the safety of the state could be secured.

Unfortunately, Cicero soon watched a squabble over Asian tax contracts cause a rift

between the senate and the publicani at the same time that the senate itself became

divided over how to handle Pompey’s eastern settlement and agrarian law. Cicero’s

moderate approach to these problems won him few friends among the aristocracy. He

opposed Cato’s treatment of the publicani but gave only lukewarm support to Pompey’s

land law. Since he did not have strong ties to either Pompey or Pompey’s opponents,

Cicero spent the years from 62-59 politically adrift, reduced almost to the role of

observer. Pompey made an effort to establish closer ties with Cicero in 60 as the struggle

over his agrarian law heated up, but Cicero opted to stand on principle and refused to

support certain aspects of the law which he found objectionable. As a result, the next

year Pompey made a deal with a more reliable ally, Caesar, and found that he could do

without Cicero’s help. Cicero thus had few real enemies among the senators, but there

were few men willing to put their careers on the line to help him. Because he missed

opportunities to forge alliances with the major players in Roman politics, he paid the

price when Clodius became tribune.

259 For a review of the careers of Clodius and Cicero in the years between the Bona Dea Trial and the struggle over Cicero’s house, see for Cicero, Mitchell (1991), 74-143, for Clodius, Tatum (1999), 81-184. 127 If Cicero spent the time in the aftermath of the Bona Dea trial resting on his laurels, Clodius made the most of the second chance offered to him by his acquittal. He created a secure and stable political base and put himself in the perfect position to strike back at Cicero, to whom he was now bitterly hostile. He first set his sights on the tribunate, a natural stepping stone to higher office,260 but a seemingly insurmountable difficulty faced him: he was a patrician, not a plebeian, and so barred from the office. He decided to have himself adopted by a plebeian, but for an adoption to become valid, it had to be approved by the comitia curiata, which in matters such as this was presided over by Caesar as pontifex maximus.261 In 59, after Caesar and Pompey had made

themselves unpopular and needed allies, Clodius was there to offer his support in

exchange for their aid in getting the adoption ratified. This did not mean that Clodius had become the triumvirs’ pawn. In fact, after the triumvirs helped him obtain the adoption,

Clodius tried to exploit their unpopularity to improve his own chances for election,

claiming that if elected tribune he would repeal Caesar’s legislation.262 But Clodius and

the triumvirs recognized the advantage of a good working relationship, and by the end of

260 Patricians faced a vexing problem in their climb up the cursus honorum; after the quaestorship they were forbidden to seek the tribunate and the plebeian aedileship, leaving only the curule aedileship as the only office available to them between the praetorship and the quaestorship, but since only two of these were elected every year and since they were available to plebeians, they faced a potential logjam if they wanted to move up. Tatum (1999), 98 suggests another reason: his mortification at the loss of face he had suffered drove him to accomplish something concrete to regain prestige. He may also have desired the tribunate because its legislative powers would allow him to strike blows against his opponents.

261 Tatum (1999), 90-111 has an excellent discussion of the problems confronting a patrician who wanted to become a tribune.

262 Cic. Att. 30 (2.12).2 For a discussion of Clodius’ independence of the triumvirs, see the classic article by Gruen (1966). See also Pocock (1924, 1927); Marsh (1927); Seager (1965); Lintott (1967). There has been a lot of ink spilled trying to put Clodius into the orbit of one politician or another, but it is very difficult to pigeonhole him in this manner.

128 the year Clodius had been elected tribune and was back on board in support of the

triumvirate. 263

Clodius demanded a reward for supporting the triumvirs. He was determined to

make Cicero pay for his testimony at the Bona Dea trial and for years of public insults

after it, and the triumvirs had to agree to stay out of his way. He included in his

legislative program a law against executing citizens without trial, which was aimed at

Cicero because he had the Catilinarian conspirators put to death.264 Pompey had stood

surety for Clodius’ good behavior, but by early 58, Pompey needed Clodius more than he needed Cicero, so he ignored the orator’s pleas for help. Clodius won over the consuls,

got his legislative program through, and then prepared to bring Cicero to trial. Cicero had a number of supporters, but many of the most important and influential senators did not want to deal with Clodius’ violent gangs and perhaps even hoped to win Clodius as an ally. They persuaded Cicero to exile himself, and upon his departure from the city

Clodius had a law passed banishing him from Italy. Cicero eventually went to Greece, where he resented his fate and, feeling betrayed, began to loathe those senators who had persuaded him to leave without putting up a struggle. His last act before he left the city was to set up a statue of Minerva on the Capitol.265

263 Tatum (1999), 112-113.

264 We should keep in mind that, while there was a personal motive in having this law passed, it would be reductionist to assume that Clodius’ only motive was personal. There were debates in Rome about legitimacy of the senatus consultum ultimum, which gave Cicero the authority to execute the conspirators, before Clodius’ tribunate. See Lintott (1972).

265 Mitchell (1991), 127-143; Tatum (1999), 150-156.

129 Soon after Cicero had left, mobs attacked and burned his house on the Palatine.

Clodius arranged for the purchase of Cicero’s house and some surrounding land under the

terms of a law he passed after Cicero’s departure. The law has become known to us as the lex de exsilio Ciceronis, and in addition to interdicting Cicero from fire and water, it

included a provision allowing seizure of the sites that contained the Porticus of Catulus

and Cicero’s house for the establishment of a shrine to Liberty.266

Displays of Piety as Political Statements

Because Roman religion and Roman politics were so closely linked, it was

inevitable that religious forms would be used to send political messages. This does not

imply that every religious act in ancient Rome had political overtones nor that the

religion of the late Republic was corrupted and exploited for political ends. But since

Roman religion and Roman politics were aspects of a greater whole, that is, Roman civic life, religious forms, acts, and symbols could and would be appropriated to send political messages. Roman religion offered a convenient symbolic vocabulary which allowed

Roman politicians to communicate a lot of information without having to make a speech.

Furthermore, the public nature of Roman religion meant that this kind of communication would reach a wide audience, which was very important to the Romans, who lived in an age without mass media. A speech could reach the few thousand who gathered in the forum to witness it,267 but a temple, altar, or other form of religious dedication would

266 Cic. Sest. 53-54, Red. Sen. 18, Dom. 59, 62, 102-122, Leg. 2.42, Att. 74 (IV.2).2-5; Dio Cass. 38.17.6. For a discussion of the terms of the law and the sources, see Sternkopf (1900), Gurlitt (1900), and Moreau (1987).

267 For a discussion of how information spread in republican Rome, see Laurence (1994) and below, pp. 162-166.

130 usually stand for quite a while, and could thus potentially impart a message to many more

people. In the same manner the institution of games, festivals, and other rituals that

would be repeated yearly (or at some other interval) would also reach many more people than a speech, even if that speech were written down and published. The Roman

audience for these messages would not think anything was amiss with using a religious

act to impart a political message, since they were acculturated from childhood to see

Roman politics and Roman religion operate as part of an interconnected whole.

The struggle over Cicero’s house employed this kind of religious communication.

Both men made displays of piety which contained a political message for their fellow citizens. Both men then proceeded to challenge the other’s piety, undermining the other’s message by questioning the propriety of their religious acts. The conflict over the house represented an attempt to control this kind of religious communication, since the issue at stake revolved around whether Clodius’ temple to Libertas, with the political message imbedded in it, would continue to exist and would thus continue to impart

Clodius’ message.

Before we look at Clodius’ temple, let us look at another example of a political message encapsulated in a religious structure: the temple of Concord. The temple, built originally in 304 B.C., was rededicated (for the second time) in 121 B.C. by the consul

M. Opimius after he had crushed the Gracchi and thus ‘restored’ harmony to the populus

Romanus. From his own point of view he had saved the state from a dangerous demagogue and restored civic unity, and he chose a pious act, the rededication of a temple, to advertise that fact. Of course, his opponents saw his act of piety in a

131 completely different light. They found it offensive that a man who was responsible for

the deaths of so many citizens would chose a temple to Concord as the place to

memorialize his deeds. As a result they appropriated the symbol for their own purposes,

defacing it with graffiti that reminded any passers-by how Opimius had brought

‘concord’ back to Rome.268 Opimius thus found a way to combine devotion to the gods

with a political message, and his enemies attempted to undermine that message by

attacking the structure he had chosen to impart it.

The temple of Concord continued to have symbolic value during the turmoil of

the late republic. It was there that Cicero provided evidence to the senate that the

Catilinarian conspirators were trying to seize control of the state, and it was there that the

senate resolved to execute them.269 The senate could meet in any inaugurated space; the choice was up to the presiding officer. Cicero clearly chose the temple of Concord for its symbolic value. The goddess represented harmony between all levels of Roman society, which Cicero hoped to restore by suppressing the conspirators. It also harkened back to

Opimius, who had used what Cicero regarded as legitimate violence to restore order after the senate issued the senatus consultum ultimum, the same decree by the authority of which Cicero executed Catiline’s supporters.270

268 Plut. C. Gracch. 17.

269 Cic. Sest. 28, Phil. 2.15, 19; Sall. Cat. 49.4.

270 Some Romans might call into question the legitimacy of Opimius’ actions and of the senatus consultum ultimum, but Cicero certainly did not, see, e.g., Planc. 70, and more or less the entire Rab. post. For a discussion of the senatus consultum ultimum, which gave emergency powers to the magistrates in times of crisis, see Mitchell (1971).

132 We know that Cicero appreciated the political value of religious symbols, since, as we have seen, Cicero’s last act before leaving the city was a display of piety that contained a political message. Because he would be leaving the city and would be unable to use his skill at oratory, he let a dedicatory statue on the Capitol do his speaking.

Votive offerings were a central element of Greco-Roman polytheism, often made before a long journey as a prayer for safety or after a safe return as the contractually obligated form of thanks.271 Cicero chose to make his offering ‘to Minerva, protectress of the

city’,272 an act which contained a number of messages for any viewer of his offering. By making the offering as he was leaving he was symbolically transferring guardianship of

the city from himself to Minerva, thus reminding the Romans that he had protected the city during his consulship by saving it from the Catlinarian conspirators. Of course, he was also reminding the citizens that his absence meant that Rome was losing one of its most important human protectors. Furthermore, the presence of the statue reminded any who saw it that Cicero’s chief concern, even in exile, was the safety of the city. All three of these messages might elevate Cicero in the minds of the Romans and undermine

Clodius, who was chiefly responsible for removing a man whose prime concern (or so

Cicero hoped the Romans would think) was Roman civic health. Thus the dedication

spoke for Cicero when he himself was unable to be present to speak. 273

271 Burkert (1985), 68-70; Scheid (1998), 87-89.

272 Cic. Dom. 76, 92, 99, 144-45, Sest. 49, Vat. 7, Leg. 2.42; Plut. Cic. 31.5; Dio Cass. 38.17.5; Quint. Inst. 11.1.24; Allen (1944), 8-9.

273 And perhaps also, as Mitchell (1991), 138 suggests, reminding them that he was saving it from further violence by removing himself from the city.

133 Cicero was not the only one who realized how well acts of piety could serve to

impart political messages. As part of his lex de exsilio Ciceronis, Clodius had Cicero’s house, where Cicero conducted the rites of his family cult, confiscated by the community and its site dedicated to the goddess Libertas. He would thus in one stroke remove from the community, roots and all, a man who had trampled on the liberties of the Roman people (by executing citizens without trial) and at the same time honor the goddess who personified and protected those liberties. Libertas to the Romans represented both the personal freedom of an individual Roman (the fact that no one owned him) and the civic freedom of the citizen body as a whole. The goddess was even associated with the right of appeal,274 on which Cicero had arguably trampled when he had Catiline’s followers

put to death. Clodius’ message was clear. Cicero was not the guardian of the city but the

destroyer of the freedom of his fellow citizens. Clodius thus had neither committed a

crime nor endangered the state by having Cicero exiled. He had acted as champion of

Roman liberty. The temple was a message preserved in stone, one which could speak for

Clodius forever. So long as the temple stood, the Romans would remember Clodius’ role

in avenging Roman citizens executed without trial and (so Clodius hoped) see him as the

true protector of the city. Cicero recognized the communicative potential of the temple to

Libertas. Of course, he had a different idea about what the temple’s message was. At his

speech before the college of pontiffs after his return from exile, he asked the college,

‘will you brook that this portico should stand on the Palatine, yes, in the city’s fairest

spot, to be an ineradicable memorial to all future generations of all races of a tribune’s

274 Wirszubski (1968), 1-2; Tatum, (1999), 165.

134 recklessness, a consul’s wickedness, the barbarity of conspirators, the ruin of the

republic, and of my own grief?’275

Thus Clodius and Cicero each employed an act of piety as a way of

communicating, Cicero by setting up an offering and Clodius by building a temple.

When Cicero’s exile ended, he tried to remove the temple, thus removing Clodius’

message from the view of the Romans. Clodius was equally determined to see that the

temple continued to stand. They had to make their case to the fellow members of the

community, who would decide whether the temple would be torn down. The community would, in effect, judge whether the consecration of the temple genuinely fulfilled an obligation to a god and, at the same time, whether Clodius’ message represented the will of the community.

Cicero’s House

Cicero’s first goal upon his return in September, 57, was to regain his land and to rebuild his house.276 The site on the Palatine was precious to him because the hill was the

most fashionable, prestigious, and expensive neighborhood in Rome, and when he

purchased the property and took up residence there, he was showing the entire

community that he had reached the pinnacle of Roman society. Of course, the rebuilding

of the house would also entail the destruction of Clodius’ temple, so if he could regain his

Palatine residence he would win a victory that was doubly symbolic.

275 ‘Hanc vero in Palatio atque in pulcherrimo urbis loco porticum esse patiemini, furoris tribunicii, sceleris consularis, crudelitatis coniuratorum, calamitatis rei publicae, doloris mei defixum indicium ad memoriam omnium gentium sempiternam?’ Cic. Dom. 103. (Loeb trans.)

276 See Mitchell (1991), 127-143 and Tatum (1999), 150-184 for a review of the political maneuvering that resulted in Cicero’s return.

135 Because the Romans did not have a religious system based upon a centralized

hierarchy, the process of deciding whether the temple would be deconsecrated and the

land restored to Cicero was quite complex. By the time it was over, the senate, people,

the consuls, and one of the religious colleges all had their say in the matter, and a

decision was reached only after complex maneuvering by Cicero and Clodius.

Fortunately, we have Cicero’s speeches and letters to show how these various individuals

and groups interacted to reach their decision.

Cicero had to face a problem: being recalled from exile did not mean that he

would automatically regain his property. Cicero’s had to convince his fellow citizens that

the fate of his home was a matter of public interest. He set the stage immediately upon

his return. On the September 5th he made two speeches, one before the senate and the

other before the community as a whole.277 He took care to thank by name all those

citizens who had fought against his exile and had helped get him recalled.278 He also

took special care to emphasize his own personal piety and concern with the welfare of the

gods, which he contrasted with the impiety of his enemies. This was an important step to take, since by advocating the removal of a temple he was opening himself up to criticism for impiety, which would hurt his public standing. If he could succeed in affixing the label ‘impious’ on Clodius and his allies, it would be easier for the community to have

277 A good general discussion and rhetorical analysis of the post reditum speeches can be found in Nicholson (1992).

278 Nicholson (1992), 45-89 has an discussion of the social importance of repaying one’s friends by giving thanks, as well as an exhaustive list of those whom Cicero owed, both those whom he thanked and those whom he did not.

136 Clodius’ temple removed, since the Romans could rationalize the removal by arguing that

the temple was not acceptable to the goddess, as its dedicant was tainted with impiety.

Therefore, one of Cicero’s goals in the speeches post reditum was to set up a

contrast between himself, whom he portrayed as respectable, pious, and civic-minded,

and his opponents, whom he characterized as ruthlessly self-serving, violent, and

impious. Much as a Roman’s religion was intertwined with other aspects of his civic

life, piety and impiety (or the perception thereof) was part of his public image. We

should not be surprised to see Cicero advertise his piety in a speech aimed at displaying

his civic virtues.

Cicero made certain that his post reditum speeches stressed his and his allies’

respect for the gods. He began his speech to the senate by thanking everyone who

supported him during his exile. Prominent among these were the immortal gods, ‘since it

is by their grace,’ Cicero proclaimed, ‘that we enjoy these blessings and others with

which they have endowed us.’279 He went on, thanking the senators for restoring ‘to us

the affection of our parents and the gifts of the gods, the distinctions conferred upon me

by the Roman people . . .’ etc.280 And again in the same passage he stated that ‘to the

immortal gods we owe everything.’281 The cumulative effect of all this is clear. At the

same time Cicero he was thanking the senators for ending his exile, he was demonstrating

his personal piety by repeatedly and effusively thanking the gods, creating an image of

279 ‘quorum beneficio et haec tenuimus et ceteris rebus aucti sumus...’ Cic. Red. sen. 2. (Loeb translation).

280 ‘parentum beneficia, deorum immortalium munera, populi Romani honores...’ Cic. Red. sen. 2. (Loeb translation).

281 ‘omnia dis immortalibus debeamus...’. Cic. Red. sen. 2. (Loeb translation).

137 himself as a man who knew his religious obligations and who took seriously his relationship with the divine members of the Roman community. Cicero returned to this theme in his speech before the people. He thanked the gods for giving him children and many other blessings. He showed his esteem for the populus Romanus by comparing his gratitude toward them to the gratitude he felt toward his divine protectors. He proclaimed that he owed the Roman people as much as he owed the gods, since it was they who had restored all of the blessings that the gods had originally given.282 Of course, Cicero had a

rhetorical point that he wanted to make, but we should not dismiss the references to the

immortal gods in his speech as empty verbiage. The Romans valued the concept of fides: a person who had fides recognized the importance of paying back what was owed.283

Cicero crafted the post reditum speeches to display his fides, and so he repeatedly offered thanks for the benefits that the gods, his friends, the senate, and the populus Romanus had bestowed upon him. The Roman concept of pietas was linked with fides, since, like fides, it involved the scrupulous fulfillment of obligations, in this case obligations owed to gods and to family.284 Displaying his pietas was part of displaying his fides. Piety was

thus not just a trope; it was a central theme of these orations.

There was another side to the coin. In the post reditum speeches Cicero

portrayed his enemies as self-interested instead of civic-minded, contrasted their lust for

violence with his desire for peace, and claimed they dishonored the gods rather than

282 Cic. Red. pop. 5.

283 Hellegouarc’h (1963), 23-25.

284 On the relationship between pietas and fides, see Hellegouarc’h (1963), 276-279.

138 worshiped them.285 In this way he put his enemies’ impiety in sharp contrast with his

own piety. For instance, Cicero got a lot of mileage out of Clodius’ violent political

tactics, which led to the destruction of Roman temples. Clodius had gotten a law passed

that legalized most collegia, which were voluntary organizations usually centered on one

craft, trade, or neighborhood.286 In the wake of the Catilinarian conspiracy such

organizations were outlawed as a threat to public order. In a city with no police, collegia

could easily be mobilized as an armed gang. This is exactly what Clodius did in 58, and

he had no qualms about using these groups to intimidate his enemies. Clodius’ enemies

followed his lead and mobilized their own gangs, and during the 50s Roman politics was

fought in the streets as much as it was discussed in the forum. Cicero painted a vivid

portrait of the violence: armed thugs seizing the streets, noble Romans attacked, and even

temples to the gods put to the torch.287 Thus Clodius’ political tactics were not just

unconventional; they were impious.

While speaking before the senate, Cicero also took special care to insult the two

consuls of the previous year, whom he blamed for failing to support him against Clodius.

He described their offensive personal habits, mocked their appearance, and attacked every aspect of their public and private lives. Their attitudes toward the gods did not escape notice. Cicero denounced Gabinius for permitting Clodius to pass his law on obnuntiation, which Cicero claimed trampled on traditional Roman religious

285 See Nicholson (1992), 90-97 for a discussion of Cicero’s inimici.

286 For sources and discussion, see Tatum (1999), 117-119 and the corresponding notes.

287 Cic. Red. sen. 7, Red. pop. 4. The reference to burning temples may be rhetorical exaggeration, but, in fact some of Clodius mobs eventually did cause a fire to burn down a Nymphaeum. See below, p. xx.

139 procedure.288 Cicero also denounced Gabinius’ colleague Piso, pointing out that his bankrupt intellectual interest centered on Epicurean philosophy.289 The most famous aspect of Epicurean philosophy, apart from the teaching that pleasure is the central aim of life, is the idea that the gods were not at all concerned with mortal affairs and did not deign to intervene in them. This view contrasted with Roman religious practice, which assumed the gods would and could intervene on the Roman’s behalf or on behalf of

Rome’s enemies, depending on the state of the gods’ relationship with the Roman community. Though many Roman aristocrats favored Epicurean philosophy, including

Julius Caesar and his assassin C. Cassius, many others held the philosophy in disdain,290 and its controversial assertions about the nature of the gods made it easy for Cicero to use

Piso’s philosophical outlook as a sign of his supposed impiety.

Pompey and Cicero

The senate decided to discuss restoration of Cicero’s property, and on the motion of Bibulus, it asked the pontiffs to give an opinion on the religious issues involved.291 On

September 29 the college of pontiffs met in accordance with the senate’s request, and both Cicero and Clodius were allowed to make an address. Cicero published the speech he gave, the De Domo Sua. To a modern reader it seems very unusual, because the first

288 Cic. Red. sen. 11.

289 Cic. Red. sen. 14.

290 See, for instance, the criticism of Epicurean theology made by ‘Cotta’ in Cic. Nat. D. 1.57-124, in particular 1.115-119.

291 Cic. Dom. 69, Har. resp. 11.

140 quarter of the speech292 had nothing to do with the issue at hand. Instead, it discussed

Cicero’s relationship with Pompey and defends his friendship. At first glance this would

seem to be irrelevant and thus rhetorically ineffective, but Cicero was responding to the

address of Clodius, who made an issue of Cicero’s support of Pompey. This merits

comment, since it shows how contests over piety were connected to other aspects of civic life.

Although the college of pontiffs was summoned to discuss whether the temple of

Libertas should continue to exist, they could not confine themselves to this issue, because

no one present, not the members of the college, not Cicero, and not Clodius believed that

the only thing at stake was the existence of a temple. The recommendation of the

pontiffs would be part of the community’s judgment of Clodius and Cicero as citizens

and as community leaders. If the pontiffs decided that the temple should remain, they

would be recognizing its establishment as a genuine act of pietas. They would be

declaring to the community that Clodius had acted in the community’s best interests, and

they would be endorsing the idea that Cicero had trampled on the liberties of the Roman

people when he executed the Catilinarian conspirators, since that was one of the

messages Clodius had sent when he had built the temple. And by endorsing Clodius’ past actions they would effectively give him a contemporary political victory, thus bolstering his career. If, however, they supported the temple’s removal, they would be condemning

Clodius and endorsing Cicero. Since the verdict of the college was a statement about the fitness of Cicero and Clodius to serve the Roman community, neither politician confined

292 Sections 3-31. Goar (1972), 46 argues that the primary purpose of this section is to emphasize that he is a conservative optimate just like the pontiffs, but this oversimplifies the political outlook of the college.

141 his discussion to the temple. Past and current political acts, personal, family, and public

religious behavior, in fact, every aspect of private and public life was fair game.

Even though the college considered evidence that lay outside the immediate scope

of their inquiry, we should not be tempted to dismiss the role of the pontiffs as ‘merely’ political. It was inherently political, but also inherently religious. Perhaps it would be

better to say that the concerns of Cicero, Clodius, and the college were ‘civic’, since both

politics and religion were part of Roman civic life. The problem we face if we focus on

the political components of the speech is that we underrate the importance of the

religious.

The Stakes

We must now turn to the question of what each side stood to gain or lose by the

pontiffs’ decision. At first glance, the question would seem to be easy to answer: if the

pontiffs ruled in favor of Clodius, the shrine would remain; if for Cicero, the shrine

would be demolished and Cicero could rebuild his house. A ‘vexed passage’, as Tatum

calls it, in Cicero’s Letters to Atticus293 forces us to reconsider. In a letter written in early

September, 57, Cicero described the possible outcomes of his hearing before the college:

qui (the pontiffs) si sustulerint religionem, aream praeclaram habemus, superificiem consules ex senatus consulto aestimabunt; sin aliter, demolientur, suo nomine locabunt, rem totam aestimabunt.

If they (the pontiffs) lift the religious sanction, I have a splendid site and the Consuls, under senatorial decree, will estimate the value of the building. If not, they will pull down the temple, let out a contract in their own name, and make an estimate for the whole.294

293 Tatum (1999), 188.

294 Cic. Att. 73 (IV.1).7, Shackleton Bailey’s Loeb translation.

142

Shackleton Bailey, following Nisbet, explains the meaning of this section:

“If the consecration [of the temple of Libertas] is nullified [Cicero] will have the site on which to rebuild and receive compensation for his demolished house; that Clodius’ structures would in this case be removed . . . is taken for granted. If on the other hand the consecration is upheld, he [Cicero] will be paid compensation for both site and building. The temple, as ‘a conspicuous reminder of the Senate’s defeat’, will none the less be demolished and another, not associated with Clodius, built in its room.”295

This would seem to indicate a win/win proposition for Cicero, or at least one that was win/not-lose. For Clodius, however, even a victory before the pontiffs would be a Pyrrhic one, since his own temple would be destroyed and replaced by one built under the senate’s guidance. Upon consideration, however, we cannot accept Shackleton Bailey’s interpretation of the passage.

First, there is a potential error in the text. Watt, following Schulz, argued that the received text is flawed, that something is missing between demolientur and suo nomine.296 Shackleton Bailey’s text includes no lacuna, since he feels the text makes sense as it stands. If Watt’s assertion is correct, Shackleton Bailey’s and Nisbet’s

conclusions would be erroneous, since the lost text might indicate that it was something else, not the temple, that would be torn down as a replacement site for Cicero’s house.297

295 Shackleton Bailey (1965), 169. The interior quote comes from Nisbet (1961), 240. Shackleton Bailey originally (1960), argued that Cicero was mistaken and that the consuls would never tear down the temple if the pontiffs found for Clodius, but Nisbet convinced him that it made perfect sense for the consuls to tear down the building, given the senate’s antipathy for what it stood for.

296 Watt, Att. IV.1.7, followed by Tatum (1999), 188.

297 It is hard to say what this ‘something else’ might be. Most likely another structure on the Palatine or in another important area in Rome so the senate could restore some of Cicero’s dignity even if they did not restore his original property.

143 Second, in spite of the assumptions of Nisbet and Shackleton-Bailey, the political

context does not lean toward a conclusion that the senate had already decided to punish

Clodius. Nisbet convinced Shackleton-Bailey that the senate so despised Clodius that it

was willing to tear down his temple no matter what the pontiffs ruled. Tatum counters

such assertions by citing Cicero himself. In a later passage of the same letter, the orator

admits that own star had fallen since his return.298 This makes it far from certain that the

senate so opposed Clodius and so favored Cicero that they had already decided to tear

down the temple. Tatum also notes that the grain crisis and Pompey’s political

maneuvers were influencing events, and suggests many in the senate were ready to stop

flogging Clodius if they could use him as a counter to Pompey.299

Further analysis adds weight to Tatum’s conclusion. Even if we conclude that the

text is correct as it has come down to us, we do not know exactly what was said to Cicero

to make him conclude that the shrine was destined to be demolished, and he may be

giving a very optimistic view of the situation to Atticus, reporting the opinions of a few

of Clodius’ die-hard opponents. As we have seen, contests over religious issues were

tangled and complicated affairs, and though someone may have suggested in the senate

that the aedes Libertatis be removed regardless of what the pontiffs ruled, making

suggestions in the senate was easy. Implementing this one in the face of a pontifical

ruling would have been quite difficult. The key issue on which the fate of the shrine

ultimately hinged was whether Clodius had received proper authorization from the

298 Cic. Att. 73 (IV.1).8.

299 Tatum (1999), 188-189.

144 populace before consecrating the temple. Had the pontiffs concluded that Clodius had

observed all necessary civic and religious forms when he consecrated the structure, they

would have essentially declared the shrine a viable and integral part of the civic cult and

given Clodius a strong weapon to use against anyone who wished to remove it. In this

case Clodius could essentially argue that he had acted piously when he constructed the

temple and that those who wished to remove his shrine were acting impiously. In

addition, removing the temple in spite of the pontiffs’ ruling would set up an interesting

constitutional quandary, since it would pit the senate’s traditional authority over many

religious issues against the authority of the consilium plebis, which had authorized

Clodius to act. We may also be certain that Clodius would put up a stiff fight and

perhaps win a lot of support if the pontiffs were to rule in his favor. If Clodius had

demonstrated one characteristic, it was his willingness to fight every political battle to its

utmost, regardless of the consequences.300 Finally, many senators who were willing to

recall Cicero would draw the line at tearing down a properly-consecrated religious

structure, and many others would not wish to be drawn in to a such a political quagmire in the middle of the other major issues the senate had to face, not the least of which was dealing with the grain shortage plaguing Italy.

Thus, it is best to conclude, with Tatum, that the letter cannot be used as proof that the temple to Libertas was destined to be destroyed regardless of what the pontiffs

300 For instance, he was willing to use every device, including violence, to prevent Cicero’s recall in spite of the overwhelming support the bill had in the senate by August, 57. As Cic. Red. Sen. 25-26, 31, Dom. 30, Sest. 139-130, Mil. 30, and Pis. 34 indicate, Clodius was the only senator to oppose the bill calling for a law to recall Cicero. The fact that he delayed Cicero’s recall over a year after it was first discussed in the senate was an achievement to his ability to get the system to work in his favor in the face of considerable odds.

145 decided. Its fate rested largely with the pontiffs and with the senate, and whichever party

was able to influence those two bodies would be able to determine what happened to the

site.

Clodius’ Pietas

We have seen before, in chapter two, that Romans in general and the political elite

in particular scrutinized each other’s religious behavior. Since a person’s pietas was part of his public character, if his enemies observed him taking actions that seemed arguably impious, they would be certain to call this to the attention of their fellow citizens, in hopes of undermining their opponent’s civic status. Cicero’s speech before the pontiffs provides another example of this. Cicero claimed that Clodius’ whole career was one act of impiety after another, and he cited examples of supposedly impious behavior as a way of persuading the pontiffs to rule against Clodius. This again illustrates that the parties in this dispute did not believe that the pontiffs were going to be influenced only by the immediate issues of religious law, but were instead taking into consideration every aspect of their religious lives. Cicero, therefore, made Clodius’ impiety the central theme of his speech. Let us look at some examples.

The Bona Dea affair, of course, did not escape Cicero’s notice. Clodius was arguing that he had built and consecrated the temple of Liberty in complete fulfillment of religious law. Cicero mocked him and wondered that a man who had stripped the pontifex maximus’ house of its holiness would have the gall to try to consecrate

146 Cicero’s.301 Cicero gleefully contrasted Clodius’ concern for the civic cult when

defending his temple with his behavior at Caesar’s house. He sarcastically suggested that

it might be wise for the pontiffs to make use of their religious expertise and remind

Clodius that excessive religious scrupulosity was as much anathema to proper religious

behavior as insufficient care.302 Clodius, so Cicero claimed, was so eager to participate

in the civic cult that he intruded on rites even though he was forbidden!303 The point of

the contrast is clear. No matter what claims Clodius made about his pious intentions in

founding the temple of Liberty, his own history of irresponsible behavior belied those claims. He urged the pontiffs to decide whether the temple should stand after considering the character, in particular the pietas, of its founder. 304 This is significant because it

shows that the fate of Cicero’s house did not depend solely on questions of law and religious procedure. The temple was to be judged not only on whether the consecration had been legally valid but also on whether its founder really had the welfare of the

Roman civic cult at heart. Cicero was arguing that since Clodius had shown such reckless contempt for the wishes of the gods in 62, he was not really interested in their welfare in 58 when he dedicated the temple. Therefore, the temple did not really

301‘ Publiusne Clodius, qui ex pontificis maximi domo religionem eripuit, is in meam intulit?’ Cic. Dom. 104. This is another example of how supposedly ‘resolved’ contests over piety could continue to be fought years after Roman institutions had given their verdict.

302 Those who seemed to go too far in their concern with the religious part of their civic life were mocked as having superstitio. Whether one was superstitious or properly religious was in many ways in the eye of the beholder. The difficulty in separating superstitio from religio was another feature of Roman religious life which encouraged public debates over a person’s piety.

303 Cic. Dom. 105.

304 Tatum (1993b) argues that Cicero’s rhetorical strategy in the De Domo demonstrated that the Romans perceived a connection between religion and morality, because Cicero did not confine himself to the legal issues before the college, but attacked Clodius’ character in every way possible.

147 supplement the civic cult, its foundation was not an act of pietas, it did not really fulfill a

religious obligations owed by the Roman state, and it could therefore be removed without

injury to the civic cult and the public safety.

Cicero likewise challenged Clodius’ personal piety by attacking the adoption which allowed him to run for tribune. Clodius’ adoption had a number of unusual features, which Cicero mocked. The man who adopted him was not childless and in need of an heir; he was younger than Clodius, married, and capable of having children.

Moreover, Clodius did not follow custom and take the name of the man adopting him.305

But Cicero did not assault the adoption primarily on the grounds that it was laughable.

Instead, he argued that the adoption was wrong because it was an act of impiety, and by

doing this he made Clodius’ pietas, (or lack thereof), the central issue of the section. We

must note the placement of the discussion of the adoption in the speech. The first thirty- two chapters were preliminary and were delivered in answer to Clodius’ criticism of his

support for Pompey. The real heart of the argument began in section 33,306 with an attack

on the adoption. Since the first part of the speech was an extemporaneous defense of his

public policies in response to Clodius’ attack, the discussion of the adoption was the first part of Cicero’s prepared speech. And he began his prepared text with an assault on

Clodius’ piety.

305 Cic. Dom. 33-34, Goar (1972), 47-48.

306 After, of course, a masterful piece of praeteritio, in which Cicero claimed that he is going to pass up the discussion of religious issues in favor of a discussion of political ones: ‘quae cum sit in ius religionis et in ius rei publicae distributa, religionis partem, quae multo est verbosior, praetermittam, de iure rei publicae dicam.’ Cic. Dom. 32. Yet the next topic is the adoption, and his chief attacks on it focused on religious issues. We should not be surprised that Cicero cannot avoid referring to religion when discussing something that is supposedly political, given the difficulty of really drawing a line between the two in public life. 148 Cicero found many grounds on which to characterize the adoption as impious.

First, frivolous adoptions of this kind threatened the religion of the family. Since a family

cult could only be maintained by its members, transferring people from family to family,

while understandable when used to reinforce a family that was threatened with extinction,

reduced the number of people participating in the adoptee’s original family cult, and so

made it more likely that that gens and cult would die out. Cicero chose to cast this in the

most negative way possible: he asked Clodius why he was trying to destroy his family’s

cult, to the extent that it was in his power to do so.307 Cicero tried to convince the pontiffs

that Clodius had recklessly put political ambition over the well-being of his family cult.

In short, he was impious.308

There is another issue which caused the adoption to be an act of impiety. Clodius

was a patrician, one of a very few families to whom a number of important priesthoods

were reserved, and he was setting an uncomfortable precedent that threatened to destroy

the whole structure of Roman religion. If there were no patricians, there could be no rex

sacrorum, no flamines, and no Salii, since these priestly offices were exclusively reserved for patricians, and the patrician seats on the four major priestly colleges would be vacant.309 Therefore Clodius again put his own personal ambition ahead of the good of

307 ‘sacra Clodiae gentis cur intereunt quod in te est?’ Cic. Dom. 34.

308 Cic. Dom. 36-37. It may seem that even if we accepted Cicero’s premise, the impiety was a personal and not a civic one, since it was the family, not the civic cult being trampled on. The Romans however, thought it beneficial for the community to act as protector of family cults, as the process of adoption shows, since a public assembly had to grant approval before any adoption of a patrician could take place. Another example is the Parentalia, a feast in February where offerings were made to the family gods—this feast was part of the civic religious calendar. See Scullard (1981), 73-79.

309 Cic. Dom. 37-38.

149 the civic cult, and thus ahead of the good of the community. Impiety and personal

interest went hand in hand. 310

Clodius’ Potential Responses

Defining piety and impiety was difficult in Rome, since authority to make such a

definition was scattered among a number of different individuals and institutions.311

Because of this, it was not always clear what constituted pious and impious behavior.

This ambiguity encouraged the Romans to make piety and impiety a topic of public discussion, since in a civic-minded community such as Rome, a person’s standing often hinged on whether he was perceived to possess or lack traditional virtues such as pietas.

Cicero used the ambiguity inherent in Roman religion to his advantage in the speech on

his house. None of the examples cited by Cicero was an act that was without doubt

impious. Instead, he cited arguable acts of impiety. We must keep in mind that Clodius

could counter the charges that Cicero leveled. This put the decision as to whether

Clodius had acted impiously in the hands of the audience.

We do not have Clodius’ speech before the college, but Cicero’s speech gives us

some clues about how Clodius defended himself, and we can perceive other potential

counter-arguments to Cicero’s attacks. We have already discussed Clodius’ behavior at

the festival of the Good Goddess.312 In the course of the Bona Dea affair, the college of

pontiffs had defined the presence of a man at the rites as an act of impiety. It would seem

310 Goar (1972), 48 suggests that the section on the adoption ‘does not materially advance Cicero’s argument’, but even if this section did not discuss the house, it did, in fact, advance his argument because it put Clodius’ impiety in the foreground.

311 For a full discussion of this issue, see chapter 2.

312 See above in chapter three, pp 76-77.

150 that on this point Clodius was sunk, and Cicero had his irrefutable proof that Clodius was

impious. But Clodius had an easy reply to Cicero’s charges; he had not committed an act

of impiety, since the court to try him for that act had found him not guilty. Of course,

given the widespread belief that Clodius had bribed his way to an acquittal, there were many in Rome who would have laughed at such an argument. Cicero appears to have

sensed this, given the glee with which he reminded the Romans of the affair in this and

other speeches.313 For our purposes here, though, we have to recognize that even if many

Romans would have rejected the claim that the acquittal proved his piety, many others would have taken Clodius’ side. Clodius’ popularity remained high in Rome in the years after 61,314 so even if he was not able to convince all that he was innocent, he convinced

some.

Furthermore, in spite of Cicero’s attempts to portray the adoption as a monstrous

act of impiety, Clodius could argue that it was perfectly proper. Because of the religious implications of adoption, which involved the abandonment of one family cult and the taking up of another, patrician adoptions had to be approved by the comitia curiata, a very ancient assembly.315 Clodius could argue that his adoption had, in fact, been

properly approved by the comitia curiata, in an assembly presided over by the pontifex maximus (Julius Caesar), in the presence of an augur (Pompey).316 Furthermore, at no

313 For a review, see chapter 3, pp. 112-115.

314 Clodius was able to keep the loyalty of the collegia and get elected to the tribunate and aedileship.

315 For discussions of the comitia curiata, see Botsford (1909), 168-200, Taylor (1966), 3-5. For a good review of Roman law as it related to adoption, See Crook (1967), 111-113.

316 Cicero recognized this potential objection and attacked the legitimacy of the adoption by calling into question the standing of the assembly that ratified it on two grounds (Dom. 39-41). First, he argued that the 151 time had the pontiffs made any objection to the adoption on religious grounds, and apparently they had the opportunity to do so, since they interviewed Clodius before he was adopted (as Cicero grudgingly admits), and found no reason to object.317 Thus

Clodius could argue that he had satisfied every religious requirement and had received the approval of every necessary civic institution before the adoption was completed.

A Conflict over Procedure

After Cicero had implanted in the minds of the pontiffs the idea that the dedicant of the temple of Libertas was thoroughly impious, Cicero challenged the ritual procedure that Clodius employed to consecrate the Palatine site. He tried to convince the pontiffs that Clodius had recklessly disregarded the ritual procedures that maintained the bonds between the Romans and their gods and that as a consequence he had botched the consecration of the temple. This, combined for his contempt for the very goddess to whom he had dedicated the temple and even for the entire Roman religious system, made his supposed act of piety no act of piety at all.

Clodius defended the dedication of the temple by making a number of points to the college, which we can reconstruct from Cicero’s speech. He emphasized that he had a legal right to make the dedication.318 An appropriate religious official, a pontiff, was

assembly was hastily called in violation of the lex Caecilia et Didia, and second, the assembly was held while Bibulus had been watching the skies. We have seen in ch. 2, pp 68-70, that (technically) the second objection did not hold water, and Tatum (1999), 107 convincingly argues that Cicero was distorting the terms of the lex Caecilia et Didia to strengthen his rhetoric.

317 Cic. Dom. 35.

318 ‘Tuleram, (Clodius) inquit, ut mihi liceret.’ Cic. Dom. 106.

152 present.319 He pointed out that a dedication was a religious act, and therefore it would be impious to frivolously remove his shrine.320 These points gave Clodius a very solid case, but none of them was beyond challenge, and that is what is relevant for our point here.

Cicero attacked each one of these defenses individually and found a number of flaws in the process of sanctifying the shrine. We saw earlier321 that Q. Fulvius Flaccus in 173

B.C. committed an act of impiety (removing the roof from the temple of Juna Lacinia in

Bruttium) all the while assuming he was acting piously (constructing a temple to Fortuna

Equestris in fulfillment of a vow), and he did not realize that his actions would be perceived as impious. Observers began to call Fulvius’ activities into question, the senate concluded that he blundered, and it essentially defined as impious the removal of the roof from of a foreign temple. In 57 B.C., the college of pontiffs had to deal with a similar situation: Clodius dedicated the temple under the assumption he was being pious, and yet an argument was presented to the college that his supposed act of piety was, in fact, impious. It had to decide which of the two interpretations of Roman religious law was correct.

We should be careful to avoid oversimplifying the task of the pontiffs. We might conclude that the pontiffs were answering two separate (but related) questions: ‘was the temple properly consecrated?’ and ‘do we as citizens and pontiffs object to Clodius’ political behavior enough (or respect Cicero’s enough) to find a loophole that would

319 ‘Pontifex, (Clodius) inquit, adfuit.’ Cic. Dom. 117.

320 ‘Dedicatio magnam, (Clodius inquit), habet religionem.’ Cic. Dom. 127.

321 See above, pp. 12-14.

153 enable us to uphold religious law and at the same time give Cicero his house back?’

Goar, for instance, saw Cicero’s rhetorical strategy in the speech as an attempt to ignore the former question by focusing attention on the latter. According to Goar, Cicero employed ‘moral ideas’ to combat the ‘formalism’ of Roman religion, which diverted the pontiffs from the legal issues in the case. He also employed his rhetoric to demonstrate his conservative and optimate political credentials, as opposed to Clodius’ popularis tendencies, which ostensibly put Cicero in good stead with the pontiffs, who would thus be inclined to ignore argument in favor of politics. 322 The latter point oversimplifies

Roman politics and needs little comment. Tatum has refuted the former point. The moral issues raised by Cicero were not antithetical to the ‘formalism’ of Roman religion.

Cicero’s rhetorical strategy, which makes Clodius’ moral behavior as much of an issue as his ritual behavior, assumes that moral and ritual behavior were closely linked, not antithetical.323

We can go further, however, than just noting the inseparability of the two sides of the question. If we step back from the immediate issue which concerned Cicero and

Clodius, another question presents itself: what would the religious status of Clodius’ temple be if no one had challenged its dedication? It may seem trivial and absurd to ask, but the question is important for our study, because the answer reveals how blurry the line could be between sacred and profane. If no one had challenged the dedication,

Clodius’ temple would have continued to stand as a properly consecrated temple. It had,

322 Goar (1972), 45-54.

323 Tatum (1993b).

154 after all, stood for over a year by September 57, and no one had challenged its legitimacy,

at least not formally before a body with religious authority. Tatum uses this fact as a

prop for Clodius’ case: there had been plenty of time to challenge the validity of the dedication, if anyone had seen fit to do so.324 But this misses an important point: the

consecration was in fact valid, so long as no person or group with religious authority

called it into question. Only when Cicero raised the issue before the senate and the

college and only after the college of pontiffs concluded that Clodius had erred when

obtaining permission to build the temple, was the temple removed.325 It may seem odd,

but Clodius’ actions were pious and proper until September 57, when the college of

pontiffs defined them as improper and therefore impious. It is this phenomenon that

merits attention, since it shows how difficult it could be to distinguish between piety and

impiety in republican Rome.

Clodius could argue that he carried out the dedication in complete fulfillment of

religious requirements as they had existed (or at least as Clodius had believed they had

existed) in 58 B.C. We cannot assume that Clodius was a hack and did not know what he

was doing. He was a skilled politician and could not help but recognize that one day the

dedication might be challenged. Furthermore, even if one doubts that the dedication

represented a genuine act of piety, Clodius knew that everything the temple stood for

324 ‘Nor, apparently, was there any kind of obstruction [to the dedication of the temple] in 58.’ Tatum (1999), 163.

325 Goar (1972), 51 recognizes the issue: ‘For a consecration by pontiffs had, in fact taken place, and the strict legalism of Roman religion would maintain that the former property was sacred until or unless the pontiffs decreed otherwise.’ He does not, however, see anything profound in the dichotomy. For him it is just a problem Cicero had to overcome by using his rhetoric to appeal to the pontiffs’ conservative political outlook and to get them to rule the site profane.

155 would be jeopardized if he made it easy for an opponent to have it removed because he had committed an obvious religious blunder. He could hardly have forgotten the example of Caesar’s consulship, since he had attempted to take advantage of the perception that

Bibulus’ obstruction rendered all Caesar’s laws invalid on religious grounds. And, paradoxically, Clodius himself later tried to prevent anyone from repeating Bibulus’ performance by passing a law on obnuntiation which clarified the procedure for ritual obstruction.326 Thus Clodius realized that a civic act could be annulled on religious grounds if attention were not paid to procedure. Clodius seems to have scrupulously fulfilled every religious requirement for the dedication, an argument that he made to the college.327

The task Cicero faced, then, was to convince the pontiffs to define as profane a site that had been defined as sacred up to the moment they were making the decision. His

chief obstacle was the fact that Clodius’ dedication had been accepted as proper for over

a year. We should recognize that Cicero’s task and the decision of the college had a

326 On this, see above, pp. 43-44.

327 Tatum (1999), 164 suggests that Clodius was not scrupulous enough about religious custom when making the dedication, in part, at least, because he was in a hurry to get the shrine up before his enemies could stop him. As evidence for this lack of concern for custom, he cites the fact that Clodius did not invite the whole college, which was customary if not required. There are problems with his analysis. His only evidence that it was customary for the whole college to be present is Cic. Dom. 132. (At si collegium pontificum adhibendum non videbatur, nemone horum tibi idoneus visus est, qui aetate, honore, auctoritate antecellunt, ut cum eo de dedicatione communicares?) Cicero in this passage was harping on the age and inexperience of the pontiff Clodius chose to assist him, L. Pinarius Natta, suggesting to the pontiffs that some kind of flaw in the dedication was likely. It is a little much to conclude that it was customary for the entire college to be present at every dedication from this passage. As Tatum points out, many of the members might object to the dedication and refuse to be present, thus embarrassing Clodius. So they were not invited. It is hard to believe that similar situations had not occurred in the past, given the hostility and rivalry between members of Rome’s civic elite. Thus the requirement that only one pontiff need be present. Cicero in Dom. 132 suggests that it perhaps might be best that more than one pontiff be present, but since the presence of the other members of the college was not required, we cannot assume that Clodius committed a blunder by not inviting them.

156 certain profundity given the difference between sacredness and profanity, yet the tension

between sacred and profane was balanced by another tension: between Roman religious

law, which was written down (literally engraved in stone in some cases) and the

interpretive powers of the pontiffs, who had the right to judge how and when religious

law was applied.328 The law itself was fixed, but the interpretive powers of the pontiff

made the Roman religious system itself flexible, and it was this flexibility that influenced

how Cicero and Clodius presented their cases. Cicero had to find a way to convince the

pontiffs to exercise their power and make the site of his house profane again, but he was

not looking for loopholes in religious law in hopes that the would find one large enough

for the pontiffs to allow him to wriggle through. Instead he was using religious law as the

framework on which he could build his case. But it was only the framework, and Cicero

did not need to make his case on law alone. He had the opportunity to bring in a whole

spectrum of issues to the attention of the pontiffs.329

Therefore Cicero attacked every aspect of Clodius’ civic life, and, given the

nature of the debate and the venue of the dispute, he focused special attention on Clodius’

religious life, as we saw above. Toward the end of his speech he concentrated his attack

on the temple, offering the pontiffs a wide variety of reasons why the consecration should

328 Bergemann (1992), 41-43. Tatum (1999), 189-190. We must remember that the pontiffs had the right to take what was sacred and make it profane, but they did so within the context of Roman religious law. The Roman religious system was flexible, not arbitrary.

329Goar (1972), 55, noted this, but his interpretation was influenced by his preconception of Roman religion in the late republic as corrupted by barren formalism, in contrast with, e.g., Christianity: ‘Cicero did, at least, attempt to combat the legalism of Roman religion with moral ideas. Perhaps this . . . puts him on a slightly higher plane than Clodius, who relied on this legalism in his campaign to harass Cicero.’

157 be declared null and void. This required him to tackle Clodius’ defense of the shrine

point by point.

He denied that Clodius had legal authority to consecrate the shrine because

Clodius’ seizure of the land itself had negated whatever authority the law supposedly granted to him. Cicero reminded the pontiffs that Clodius had (presumably) inserted the standard clause ‘quid ius non esset rogari, ne esset rogatum’: ‘if anything illegal was proposed, it should be held that it had not been proposed.’330 Cicero asked the pontiffs to

account Clodius’ assaults on him as unjust, which made the seizure of his property unjust.

Since the seizure was unjust, the law was null and void.331 Cicero could thus give the

pontiffs grounds under Roman law to declare the consecration improper. He did not base

his case only on the text of the law, however. Cicero continued his argument by claiming

that it was impious for Clodius to seize Cicero’s home, as a home was sanctified by the

presence of the hearth and the household gods. Cicero pointed out that Clodius was using

religion as a means to destroy religion, which was impious.332 By showing the pontiffs

that the shrine was born through an impious act, that is, the removal of a citizen from his

own home, Cicero hoped to convince them that the structure was not really sacred.

Cicero then attacked the goddess enshrined in the aedes. He wondered whether a

man who had removed Libertas from the community could really make a proper

330 Cic. Dom. 106, Loeb translation.

331 Cic. Dom. 106-108.

332 ‘ea iste non solum contra religionem labefactavit, sed etiam ipsius religionis nomine evertit.’ Dom. 109.

158 dedication to that goddess.333 He also called into question the sanctity of the idol that

Clodius placed inside the shrine. He described in great detail the supposed origin of the statue, giving it the most scurrilous of all possible backgrounds. After researching the matter thoroughly (quaesivi enim diligenter), he discovered that rumor had it that the statue was originally of a courtesan from the city of Tanagra in Asia Minor. This was bad. The statue was originally placed in a graveyard on a tomb. This was worse. The statue was stolen by Clodius’ brother Appius, who plundered every statue he could find in Tanagra, even those from sacred sites, for his own benefit.334 This was as bad as it

could get. It is hard to say what the pontiffs would have made of this unsubstantiated

accusation, but Cicero’s intent is clear. He was undermining the sanctity of the shrine,

first by linking the goddess with a courtesan, the most base and disreputable woman

possible, and then by linking the goddess with a sacrilegious act. It would be easy to

dismiss this as mere rhetoric, but Cicero was not taking random potshots and hoping to

hit something that the pontiffs could seize upon. Instead he was building a foundation on

which a decision to remove the shrine could stand. To get the site removed he had to make a case that, in spite of the apparent sanctity of the aedes, the structure reeked with

profanity, and that the only truly religious decision the pontiffs could make was to restore

the site’s sanctity by returning it to Cicero. Again, this might seem like Cicero himself

was cynically manipulating religion just to get what he wanted, but there was more at

stake than just what Cicero wanted; linked hand-in-glove with the personal advantage of

333 Cic. Dom. 110-111.

334 Cic. Dom. 112-113.

159 Cicero and Clodius was the issue of what was best for the civic cult and proper for the state religion. Cicero and Clodius each had a different conception of the temple of

Libertas’ role within Roman religion.335 It was up to the community, working through the appropriate officials, to decide which conception was truly in line with the requirements of piety.

Once Cicero had finished casting aspersions upon the goddess that Clodius had enshrined, he then further tainted the shrine by associating its site with a murder. Cicero denied that the construction of the shrine was an act of piety on Clodius’ part. Instead, it

was a real estate scam designed to give Clodius the largest and most impressive house on

the Palatine. According to Cicero, Clodius had already tried to get Q. Seius Postumus to

sell him a piece of property adjacent to his house, and when Seius let Clodius know that

Clodius would only get the property over his dead body, Clodius obligingly had him

poisoned and got the house for a song.336 With the removal of Cicero’s house and the

portico of Catulus, Clodius was able to connect the shrine of Liberty to his own home

through an impressive colonnade, which linked him with the goddess even more

closely.337 Thus Cicero again gave the pontiffs another reason to authorize the removal

of the shrine. What at first appeared to be an act of civic piety was in reality the private

335 Of course, the quest for personal advantage by each man could in itself be good for the civic cult, since it created discussion and debate over how best to manage the community’s religious life. For a further discussion of this, see the next chapter.

336 Or so Cicero claimed. Cic. Dom. 115.

337 The connection of house and temple would be repeated by Augustus, who had his own house on the Palatine connected with the temple of Apollo by a ramp, thus making the temple almost a part of his house. Tatum (1999), 166 and notes.

160 scheme of one citizen to promote himself, one which did not impart any benefit to the

community as a whole and one which involved the most heinous of crimes, murder.338

Cicero followed his attacks on Clodius’ goddess and on his motives for constructing the temple with an assault on the qualifications of the religious officer who supervised the dedication. Cicero wondered why Clodius did not go out of his way to bolster the sanctity of the shrine by inviting the whole college of pontiffs to be present, or at least a pontiff of some public standing. 339 Instead, Clodius chose his brother-in-law

L. Pinarius Natta to place his hands on the doorpost of the recently constructed temple and make the proper invocations, a questionable choice because Natta was (according to

Cicero) only recently admitted to the college.340 Furthermore, Cicero alleged that Clodius

was not moved by public concerns when he chose Natta, but only personal and private ones. 341 Cicero’s attack opened the door for the pontiffs to consider the possibility that

the procedure had been vitiated by a religious error. Since Natta was young and

inexperienced, he might have made a mistake in the formula, and any such mistake would

have rendered the dedication invalid. In fact, Cicero asserted that he must have made

338 Cicero’s arguments are interesting because they introduce the element of motivation into the conception of the propriety of a ritual act, something that current scholars generally argue was absent. In other words, the character of the official conducting a rite was irrelevant to the relationship between the community and the gods, provided that the celebrant conducted the ritual in the proper way; what the gods wanted was proper ritual behavior, not proper moral behavior. See Scheid (1998), 20-22. However, as Tatum (1993b), points out, Cicero in this speech linked pious behavior and moral behavior. We will explore the implications of Cicero’s attitude in more detail in the next chapter.

339 Cicero claimed (Dom. 117) that Clodius could actually compel the whole college to be present because he was tribune, but this is the only reference to this supposed power.

340 During the dedication, Natta, the pontiff present, placed his hand on the doorpost of the structure and recited the proper invocation, whereupon the official dedicant, Clodius in this case, did the same. Nisbet (1939), 169.

341 Cic. Dom. 117-118.

161 such an error, since no one of his youth and inexperience could possibly have been able

to speak clearly and properly given that he had no colleague or senior religious official

present and given that he was aware of the magnitude of the crime that he was

committing by helping Clodius steal Cicero’s home.342

Cicero’s claims were not mere rhetoric; he was offering the college yet another

reason to declare the dedication flawed and to restore his property. He was not going to

be able to provide evidence that an error had occurred, but he did add another brick to the

edifice that he was constructing. He was trying to show that Clodius had no respect for

the civic cult and that he was willing to risk the wrath of the gods by carelessly conducting a religious ceremony. This would undermine Clodius’ arguments that the dedication had been carried out with proper respect for Roman religious forms, and was clever given the kind of defense Clodius mounted. Clodius based his defense on his supposedly strict adherence to procedure in the dedication, and here Cicero went beyond merely asserting that the procedure had been violated. He argued that Clodius had no respect at all for the entire system which the procedures maintained, the maintenance of which system was partly entrusted to the college of pontiffs. The tactic is illustrative since it shows that Cicero, at least, reckoned the decision of the college would rest not just on specific evidence of religious malfeasance, but on the perceptions of the college of Cicero’s and Clodius’ religious behavior, and, indeed, on their entire behavior as citizens. The college was not mired in the minutiae of religious law, obsessively fixed on each individual tree and as a result losing sight of the forest. Instead, Cicero’s rhetorical

342 Cic. Dom. 134-135.

162 approach assumes that the college was willing to go beyond the text of the law and

evaluate the problem and the antagonists as a whole.

Cicero continued to treat the dedication as a personal exploit of Clodius rather

than a public religious act sanctioned by the whole community. He argued that a few

words muttered by a tribune while a pontiff held the door of an abode was not sufficient

reason to cast a citizen out of his home, and he reminded the college that previous

tribunes had been pontiffs themselves but had not dared to expel their enemies from their

homes by pronouncing a dedication at their doorpost.343 Clodius, however, had allowed

neither religious scruple nor Roman tradition to influence his behavior, as demonstrated

by his attempt to use the religious authority of the tribunate against Gabinius in 58 when he consecrated Gabinius’ property to the goddess Ceres.344

Cicero’s assertions would not seem to make a particularly strong argument.

Clodius did not really, as Cicero alleged, simply call his brother-in-law, drop by Cicero’s house, and pronounce a dedication at the doorpost for his own amusement. By the time he and Natta had acted, the house was gone and the aedes had been set up. Furthermore,

Clodius could claim that he had implemented the provisions of a law and had carried out the dedication of the temple in full compliance with Roman religious practice. This section of the speech does, however, advance Cicero’s goal of portraying Clodius as impious. Cicero was trying to show that at the broadest level Clodius’ behavior had

threatened the safety of the community, making it easier for the pontiffs to favor his

343 Cic. Dom. 122-124.

344 Cic. Dom. 123-124.

163 interpretation of what constituted proper religious practice, not Clodius’. We therefore

see again that interpreting what kinds of behaviors were pious was not simply a matter of

consulting a rigid ritual and procedural tradition. Piety could be elastic.

Next, Cicero moved to an argument on which his case ultimately hinged. He

claimed that Clodius had violated the Lex Papiria, which governed the dedication of

religious sites, thus rendering the dedication null and void. The exact provisions of the

law and the date it was enacted are part of an ongoing scholarly debate. Livy 9.46.6 (304

B.C.) mentions a law governing dedications that required that dedications receive approval from either the senate or the majority of the ten tribunes, and occasionally the argument has been made that the Lex Papiria was identical to this law.345 This seems doubtful, however, and Tatum makes a reasonable case that the law should be dated later, to the first half of the second century B.C.346 Cicero claimed the law forbade any

consecration of temple, land, or altar without the approval of the consilium plebis.347

Until recently most scholars have accepted that Cicero’s formulation of the law was

essentially correct. Ziolkowski, however, has argued that the law exempted those

magistrates cum imperio,348 while Tatum argued that the law probably exempted

magistrates sine imperio. Tatum argued that Clodius technically was exempt from the

law’s provisions, since tribunes did not have imperium, and concluded that Cicero’s

345 E.g. Willems (1878), 308-9.

346 Tatum (1993a), 325, cf. Broughton (1951) 2: 471.

347 ‘video enim esse legem veterem tribuniciam quae vetet iniussu plebis aedes, terram, aram consecrari.’ Cic. Dom. 127. Also, Dom. 128: ‘Lex Papiria vetat aedes iniussu populi plebis consecrari.’

348 Ziolkowski (1992), 229-31

164 arguments in the De Domo gave the college of Pontiffs an excuse to change Roman

procedure, since a ruling in Cicero’s favor would have impelled all future dedications by tribunes to be approved by the consilium plebis, even though up until 57 they had never had to do so.349 This is an interesting suggestion, but unfortunately Tatum’s conclusion is

hard to prove from the text. Cicero clearly spelled out the terms of the law several times, and while he was known to play fast and loose with the exact phrasing of laws when it suited his rhetorical purpose,350 if he had claimed that Clodius had violated the terms of

the lex Papiria when Clodius could have easily shown that he had not, he would make it

simple for Clodius to cut the legs out from under his case. As Orlin suggests, Cicero’s

point was more likely that the lex de exsilio Ciceronis failed to state explicitly enough

that Clodius had the right to consecrate a temple to Libertas on Cicero’s house.351 Since the law did not spell out in exact language that it was Clodius who had the right to make the dedication,352 Cicero hoped that the pontiffs would be inclined to see the dedication

as made without proper authorization and thus rule it invalid. This approach gave plenty

of room for the pontiffs to interpret Roman religious law, as was their right, and it

allowed them to recommend that Cicero get his property back without undermining the

state cult.

349 Tatum (1993a), 320-322.

350 E.g. (as we have seen) the terms of the Leges Aelia and Fufia and the Lex Clodia de obnuntiatione. See Tatum (1993a) 321 and n. 9 for a discussion and bibliography.

351 Orlin (1997), 168-172.

352 ‘Ubi te isti rei populus Romanus praefecerat?’ Dom. 127.

165 Since the lex de exsilio was central to Cicero’s (and Clodius’) case, Cicero included a lengthy attack on it in his speech. If he could convince the Pontiffs that the

law that provided for the seizure of the property and the erection of a shrine was invalid,

he went a long way in convincing them that Clodius did not really have the permission of

the plebs when he made the consecration. Therefore, he did not base his attack on it

solely on an interpretation of the lex Papiria alone. Instead, he tried to find all possible

grounds on which to declare it invalid. He argued to the pontiffs that it was a

privilegium, since it applied to him alone, and laws of this kind were forbidden by the

Twelve Tables.353 He argued that the law was invalid because it violated the lex Caecilia

et Didia, which forbade the inclusion of multiple measures in the same bill.354 He argued

that it was invalid because it had been passed per vim.355 He cited the opinion of L.

Aurelius Cotta, cos. 65, who had stated in the senate at the beginning of 57 that it was not

necessary to pass a law recalling Cicero, as the law exiling him was invalid because it

was formulated incorrectly and had been passed unconstitutionally through violence.356

None of these arguments by Cicero was beyond challenge, and the college of pontiffs

would not seem to be the place for Cicero to make such arguments, since it was not in the

college’s purview to evaluate the constitutionality of laws, but, again, Cicero was trying

to make it easier for the pontiffs to rule in his favor by making as broad an assault as

possible on the law which gave Clodius the authority to create the shrine. And, of course,

353 Cic. Dom. 43.

354 Cic. Dom. 50-53.

355 Cic. Dom. 53-58.

356 Cic. Dom. 68.

166 he did not miss the opportunity to impugn Clodius’ character while attacking the validity of his law—his criticism of the lex de exsilio is sprinkled with assaults on Clodius’ public behavior. This added nothing to the strength of his argument, but since the decision of the pontiffs was going to be made not just on the logic of the evidence given but also on their perceptions of the presenters as citizens, this was a valuable rhetorical tactic.

The Decision of the Pontiffs

After hearing both sides give their testimony, the pontiffs gave their ruling, which

Cicero reported to Atticus in a letter of early October, 57. The pontiffs ruled that the site could be restored to Cicero, if the consilium plebis had not expressly, by name, given

Clodius the authority to consecrate the temple.357 The decision is carefully phrased and

potentially ambiguous. The pontiffs are not granting Cicero the right to have his house

back; by themselves they did not have the right to do this. Yet the ruling seems to have

been a clear victory for Cicero; that, at least, is how most of the audience reacted.358

There was good reason for their reaction, since, as we will see, the senate overwhelmingly voted to restore Cicero’s property to him and give him funds to rebuild his house. What the college of pontiffs had done was to set the terms of the debate in the senate, distilling the conflict between Cicero and Clodius down into one issue: did the lex exsilio de Ciceronis give Clodius specifically and by name the right to dedicate the temple. This was a severe blow to Clodius, because it framed the terms of the debate in

357 ‘si neque populi iussu neque plebis scitu is qui se dedicasse diceret nominatim ei rei praefectus esset nequi populi iussu aut plebis scitu id facere iussus esset.’ Cic. Att. 74 (IV.2).3

358 ‘mihi facta statim est gratulatio (nemo enim dubitat quin nobis esset adiudicata). . . .’ Cic. Att. 74 (IV.2).3.

167 such a way as to exclude all of Clodius’ arguments that the dedication was carried out

according to the proper procedure. It was now irrelevant that he had followed proper

procedure and had gotten a plebiscite to authorize seizure of the property and

construction of the temple. It was now irrelevant that he had followed proper procedure

and had a pontiff present to lay his hand on the door and recite the formula to him. All

that mattered were the terms of the lex de exsilio. If the law did not say that Clodius was

authorized to dedicate the temple, then the temple could be removed without danger to

the civic cult. The senate’s ultimate decision for Cicero makes it a virtual certainty that

Clodius did not include in the terms of the lex de exsilio a provision that designated him

by name as the dedicator.359

When the college made its ruling on the religious issue, its job was over. It had

no authority to hand Cicero’s property back to him; all it could do was present its

decision to the senate. The senators actually had the power to give Cicero his property.

Of course, the pontiffs who were senators themselves recognized this fact, since when

they were asked to explain their ruling, they made certain their fellows understood that so

far as they were pontiffs, their job was over, and when they gave their opinion on what to

do about Cicero’s property they were speaking as senators, not as priests.360 Many

scholars use evidence like this to emphasize the centrality of the senate in Roman

religious affairs, relegating the priestly colleges to a lesser and advisory role.361 This

359 See also Cic. Dom. 127-129; 136-138, where Cicero denied that Clodius had dedicated his temple under the terms of the Lex Papiria.

360 Cic. Dom. 74 (IV.2).4.

361 E.g. Beard (1990) 30-43, esp. 38.

168 underestimates the influence of the priestly colleges. The pontiffs’ ruling shows how

powerful the influence of the colleges could be over the senate. The pontiffs carefully

crafted their decision to make it easy for Cicero to win his case. It was still possible for the senate to find for Clodius, since the ruling did not mandate the transfer of the

property, but by setting the terms of the debate on grounds so obviously favorable to

Cicero, the college could push the senate in the direction it wanted.362 Though the senate

had the power to decide, the college of pontiffs could exercise tremendous influence over the senate’s decision.363 Their ruling made it a virtual certainty that the senate would

authorize the removal of the temple.

Rumor, Authority, and Perception

Clodius’ response to the pontiffs’ decision illustrates the complexity of religious

conflicts. The pontiffs dealt him a blow, but this did not end the debate. Again the battle

continued, but its venue shifted. Clodius made a direct appeal to his followers among the

urban populace. So long as he was able to mobilize them to continue the fight, the

conflict would continue. Clodius was able to do this because of the way information

passed from person to person in a large pre-industrial city like Rome.

After the pontifices gave their verdict, Clodius’ brother summoned a contio, at which Clodius made an astonishing announcement: he claimed the pontiffs had ruled in his favor and that Cicero was planning to illegally seize control of the site by violence.

362 There is no doubt that the college, or at least its senior members who were senators, favored Cicero’s side, since the pontiffs present at the senate meeting on October 1 all argued that Cicero should have his property restored. Cic. Dom. 74 (IV.2).4.

363 In virtually every known case where the senate consulted the opinion of a priestly college, it followed that opinion. But see below note 113 for an exception.

169 He exhorted the crowd to rally to him and to Appius and to defend their own libertas.364

Cicero reported that even the lowest (infimi) members of the crowd were dumbfounded and some of them laughed openly at Clodius.365 The reader may wonder what Clodius

was thinking, but the nature of communication in the pre-industrial world made Clodius’

strategy far from absurd. Cicero’s assertions to the contrary, it is not likely that many

members of the crowd openly laughed at Clodius, particularly since for many Clodius’

speech was the first news they had of the pontiffs’ decision. Ray Laurence has examined

the role of rumor and person-to-person communication in republican Rome, and

concluded that one of Clodius’ political strengths was his ability to utilize collegia and

vici to pass along information, 366 an important and difficult task in a city of several

hundred thousand, particularly since only a few thousand could reasonably be expected to

hear a speaker who did not have modern technological means to project his voice.

According to Laurence, it was partly Clodius’ ability to exploit the rumor mill that made

him such a formidable popular politician, because he could get the word out to his

followers, and thus mobilize them quickly, with relative ease.

Clodius, therefore, took the opportunity to provide his own interpretation of the

pontiffs’ response. The text of the response did not mandate that Clodius concede defeat.

In fact, it could be used as an opportunity to proclaim a victory. Clodius could argue, as

364 ‘nuntiat [iam] populo pontifices secundum se decrevisse, me autem vi conari in possessionem venire, hortatur ut se et Appium sequantur et suam libertatem ut defendant.’ Cic. Att. 74 (IV.2).3

365 ‘hic cum etiam illi infimi partim admirarentur partim riderent hominis amentiam...’Cic. Att. 74.(IV.2).3.

366 Laurence (1994). Many of Laurence’s conclusions are speculative, and I am not persuaded by all of his assertions, but in general he has done a good job of evaluating how information about political processes would travel in republican Rome. Oddly, in spite of the extensive space he gives to his discussion of Clodius, he does not mention Clodius’ handling of the pontiffs’ response.

170 he had done in his speech before the pontiffs, that the lex de exsilio Ciceronis had, in fact,

given him a proper mandate to dedicate the temple.367 Even if many of the pontiffs

would disagree with Clodius’ assessment,368 their response had not specifically stated that

Cicero would get his house back. Therefore, there was still wiggle-room for Clodius, and

there was still the possibility that he could prevail on his fellow senators to interpret the

response in his favor. He took the room he was given and continued to wage his battle,

defending his piety, arguing he had properly consecrated the temple, and claiming victory

in the struggle.

In situations like this, where a crowd or an individual is given different

interpretations of the same event and has to decide which to believe, the auctoritas of the

source and the receptiveness of the listener play a role in deciding which speaker he or

she chooses to believe. We might suppose the decision would simply be a matter of

contrasting the relative auctoritates of Clodius and his brother the praetor (who had called the contio, so we must assume his presence added weight to Clodius’ assertions) versus the auctoritates of Cicero and others who might provide alternative interpretations of the pontiffs’ conclusions. Given the nature of the way information traveled in Rome, however, evaluation of messages was a more complex process. Few would initially have heard either Clodius or his opponents speak, and most Romans would hear about the

pontiffs’ decision in conversations such as ‘I heard Clodius say. . .’ or ‘I heard that

Clodius said . . .’ and counter-claims by Clodius opponents in similar fashion: ‘Oh? I

367 Tatum (1993a), 322.

368 And we know that the senators who were pontiffs, in fact, supported Cicero’s side of the argument. See Cic. Att. 74 (IV.2).4.

171 heard so and so say. . .’. In this situation evaluation of the accuracy of Clodius’ interpretation of the pontiffs’ decision took place simultaneously with an evaluation of the trustworthiness of the person’s immediate source of information, and thus the spread of information took on the atmosphere of a ‘he said, she said’ conversation. Ultimately, the hearer’s own perceptions of Clodius and his opponents would greatly influence what the hearer chose to believe, and thus Clodius could count on his loyal followers to accept

Clodius’ interpretation of the response. They would thus perceive that Clodius was acting piously when he continued to defend his temple and perceive that Cicero was acting impiously by trying to tear it down.

We see from this example that Roman institutions were not the only organization that evaluated piety and religious behavior. Popular opinion also played a role. In this case a Roman religious institution had given a ruling that seriously jeopardized the civic status of Clodius’ temple. But they had not, and could not, make a final decision on the issue, and the ambiguity of their response meant that Clodius still had lines of defense that were open. His efforts were persuasive, since after the reconstruction of the portico of Catulus had been started, he persuaded an angry mob to attack the workmen working on the project, drove them away, and then proceeded to demolish the restored construction.369

There is a second reason why Clodius would try this ploy: he still had hope that

the senate would allow the temple to remain. It is unlikely that the senate would ignore

369 Cic. Att. 75 (IV.3).2

172 the ruling of the pontiffs, but it was not unprecedented.370 Clodius was not afraid to go

after political long shots, as his stubborn opposition to Cicero’s recall in the face of near

unanimous opposition demonstrates. He might have hoped that a massive public outcry

over the temple would convince the senate to allow it to stand or at least delay

authorizing its demolition.

The Senate Decides

On October 1, 57, the senate met to consider the implications of the pontiff’s

ruling. It would seem that Cicero had all of his ducks lined up: he had obtained a

favorable ruling from the pontiffs and had the support of the majority of the senators.

But the fragmentation of civic authority in Rome kept Clodius’ hopes, and the conflict,

alive.371 The senate did not have to go in the direction that the pontiffs were driving it.

But any hope Clodius had that the senate would vote in his favor evaporated when the opinions of the senators were made known. The senators who were pontiffs were asked

to speak on their ruling, but chose not to do so, pointing out that the pontiffs were the

judges of the issues of religio, while the senate was the judge of leges.372 Speaking in his

370 See Frontin. Aq. 1.7.5 and Morgan (1978) for an example of the senate rejecting the recommendation of a priestly college.

371 Nowhere does the political/religious dichotomy make less sense than in the case of Cicero’s house, so rather than say here that ‘religious’ or ‘political’ authority was fragmented, it is better to discuss ‘civic’ authority which incorporates both.

372 ‘M. Lucullus . . . respondit religionis iudices pontifices fuisse, legis se senatum; se et collegas suos de religione statuisse, in senatu de lege statuos cum senatu.’ Cic. Att. 74(IV.2).4. This might seem like proof that there was a clear dichotomy between religion and politics in Rome, but this would be misinterpreting the evidence. The senate clearly had religious functions, and deciding the fate of the temple was clearly a religious issue as much as it was a political one. The dichotomy here is one of office and function, not of religion and politics. Lucullus and his colleagues had already given their opinion on the aspect of the matter that concerned them as pontifices. Now the discussion had shifted on aspects of the matter that concerned them as senators, and it was as senators that they were preparing to speak.

173 role as a senator, the pontiff Lucullus gave Cicero his hearty support, and his fellow

pontiffs who had seats in the senate concurred. It soon became obvious to Clodius that

the senate was about to vote to remove the temple, but he had a few tricks up his sleeve.

First, it was possible to delay the senate’s proceeding by filibuster. The senate

could not meet after the sun had set, and Clodius tried to speak out the session.373 After three hours, however, his fellow senators shouted him down. Therefore he moved to his second plan. He used a friendly tribune, Serranus, to gum up the works. The power of the senate was not infinite. A tribune could always interpose his veto, which would prevent discussion of the matter until another day.374 Again we see how the fragmentation

of Roman civic authority made resolution of a religious conflict difficult. But

maintaining a veto in the face of near-unanimous opposition from one’s fellow aristocrats

was not an easy position for a tribune to take. In the face of fierce protests Serranus

maintained his resolve. The October 1st session of the senate ended with a stalemate, but the senate met again the next day and Serranus decided to abandon his lonely stand.375

During the October 2nd session of the senate, a resolution was passed that ordered the

temple removed and the portico of Catulus restored, and Cicero received HS 2.75 million

as recompense for his lost property. This was a tremendous victory, but Cicero

characteristically decided to regard his glass as half-empty and groused about the paltry

373 For a discussion of this kind of filibuster, known as longa oratio, see De Libero (1992) 15-22.

374 Thommen (1989), 207-240, De Libero (1992), 29-48.

375 Cic. Att. 74 (IV.2).4-5.

174 sum the senate awarded him, blaming his back-stabbing enemies among the boni for his

troubles.376

The process of deciding what to do about the temple of Liberty shows how

complex it could be for the Romans to resolve their religious conflicts. The pontiffs had

cleared away much of the underbrush and left the senate a very clear issue to decide: did

Clodius seek proper authorization to dedicate the temple? If he did not, the senate could

authorize its removal and give Cicero back his property. The senate for its part was ready

to say that Clodius had not formulated the lex de exsilio properly, and virtually all of the

senators were prepared to authorize the temple’s removal. But because it was so easy to

obstruct the decision-making process, some kind of consensus had to be reached among the Roman civic elite before the crisis could be resolved. In this case, Serranus’ support

for Clodius presented a potentially insurmountable problem for Cicero and his supporters.

He could prevent the senate from even discussing Cicero’s house, and this would mean that Clodius’ temple would continue to survive. The final judgment on Clodius’ pietas could be delayed until the end of Serranus’ tribunate, and Clodius would have another chance to woo and win one of the ten new tribunes who would take office in December.

Thus, the climactic scene in the senate on October 1st, when in the face of Serranus’ veto

an outraged senate declared that it would deem any person exercising a veto responsible

for any violence that broke out over the issue of Cicero’s house.377 The senate tried to

force Serranus to face political and social isolation, a potentially terrifying prospect for a

376 Cic. Att. 74 (IV.2).5.

377 ‘si quae vis esset facta, senatum existimaturum eius opera factam esse qui senatus consulto intercessisset.’ Cic. Att. 74 (IV.2).4

175 young pedarius. Familial pressure was also put on Serranus; his father-in-law Cornicinus

tore off his toga and threw himself at Serranus’ knees.378 What is important to note is

that the issue of whether the dedication of the temple was a pious act has taken on

another aspect: a test of the authority of the senate,379 and it was resolved only after social

pressure—pressure from both fellow aristocrats and family members, encouraged

Serranus to abandon his opposition. Religious conflicts were not just embedded in

Roman politics, but Roman society as well.

The End of the Battle?

The senate’s decision ended the debate, so far as Roman civic institutions were concerned, but the dispute did not end there. Even though the senate had decided that Clodius had not properly dedicated the temple, Clodius still had another forum to make his case, one outside the control of Roman civic institutions. He could appeal to his own followers directly and ask for their help. Violence was one of the characteristic features of late republican politics, one

often cited as a contributing factor in the revolution which brought about the empire.380

Clodius had found new ways to mobilize Rome’s populace and did not hesitate to use violence to intimidate his political opponents. Thus we should not be surprised that

Clodius did not abandon the struggle after the senate had ruled against him. On

November 3, after the property was restored to Cicero and reconstruction had begun on

Cicero’s house and the porticus Catuli, an angry mob stirred on by Clodius attacked the site, drove away the workmen restoring Cicero’s house, and knocked down the

378 This was apparently something of a ritual with him, he had done it so often. ‘Cornicinus ad suam veterem fabulam rediit; abiecta toga se ad generi pedes [Serrani] abiecit.’ Cic. Att. 74 (IV.2).4

379 senatui placere . . . auctoritatem ordinis ab omnibus magistratibus defendi. . . .’ Cic. Att. 74(IV.2).4.

380 On violence and self-help in republican Rome, see Lintott (1968) and Nippel (1995); for an alternative view on the effect of late republican violence on the Roman constitution see Gruen (1974), 405-448.

176 porticus.381 And so the struggle continued even after Roman institutions had declared the matter resolved.

Conclusions

Our study of the debate over Cicero’s house has been very instructive. First, it

confirms many of the observations made in chapter two. A conflict where pietas was the central issue arose when there was an uncertainty in religious procedure—in this case evaluating the status of a temple dedicated by a tribune, the first such temple ever dedicated. The fragmentation of religious authority in Rome encouraged conflicts over religious issues, and at the same time made resolution of those issues a lengthy and complex problem. The conflict was discussed and debated among a variety of groups with authority over civic affairs before a resolution was reached. The status of the temple was discussed in the senate, in contione, and before a religious college. Senators, magistrates, and priests all got a chance to state their opinion on the matter. It was resolved only after consensus was reached among the Roman aristocracy. The resolution helped clarify the ambiguity that had led to the dispute, and Roman religion changed and evolved. In this case, the college insisted that explicit mention of the dedicant in a plebiscite was the only way to guarantee that religious law would be fulfilled and the temple properly dedicated. This was probably more than a clarification. It was probably a new interpretation of the law, since it is highly unlikely that Clodius would have risked his temple by making an obvious blunder. And again, even after the community’s leaders declared the issue resolved, the hostility and emotion it inspired continued to fester.

381 Cic. Att. 75 (IV.3).2

177 We also get to see religious conflicts in greater depth in this case than in any

other, and they reveal a number of new things. First, they confirm that piety was an

integral part of a politician’s public life. Roman aristocrats carefully observed one another’s religious behavior, and when they noticed potential religious lapses in their rivals, they made certain that these lapses came to the attention of their fellow citizens.

Cicero reminded the pontiffs that Clodius was notoriously impious, calling their attention to the Bona Dea scandal and the adoption as proof of his impiety. Cicero realized that he

stood a much stronger chance of winning his case if he could undermine Clodius in the

eyes of the pontiffs, so he took the opportunity to characterize him as an impious villain

who did not concern himself with religious propriety if it obstructed his own political

advancement.

Since pietas was a civic virtue, displays of pietas could carry civic messages.

Roman religion had a rich symbolic vocabulary that made it possible for Rome’s leaders

to send messages that would reach larger audiences across longer periods of time than

any speech could. So before Cicero left to go into exile, he placed a dedicatory statue on

the capital that had both religious and political messages. This allowed him to remind any viewer of the dedication and any subsequent viewer of the state of his role as Rome’s guardian. Clodius used the temple of Liberty in a similar fashion. It was a message in stone declaring to all who saw it that Clodius had defended the liberty of the Roman people and would continue to do so in the future.

We also see how important the interactions were between various groups and individuals with authority when it came to deciding contests over piety. Before it was

178 decided that the dedication of the temple of Liberty was not a genuine act of piety, so far

as the Roman community was concerned, the senate had to meet three times to discuss

the issue, the college of pontiffs had gotten involved, appeals were made to the assembled

populace, and a supposedly grief-stricken father-in-law threw himself at the feet of a

tribune to beg that he abandon his obstruction. It required all of these groups and

individuals to resolve their differences before the Roman state could act. Thus, even

though the power to make the decision rested with the senate, since (as Beard argues)382

the senate served as mediator between the Roman gods and the community, the senate

did not act in vacuo. First, the opinion of the pontiffs exercised a great amount of influence on that body, and the pontiffs had crafted their decision so as to make it very easy for the senate to remove the temple. Second, the senate had the right to make a decision, but they could not actually do so as long as a tribune was willing to interpose his veto.

Furthermore, the conflict over Cicero’s house also reveals the relationship between Roman civic institutions and extra-institutional powers in religious conflicts.

The senate as an institution had no right to stop Clodius’ from talking out the session on

October 1st, but the pressure brought on him by his fellow senators made him abandon his efforts to continue speaking: their auctoritates, not the power of the institution to which

they belonged, prevailed on him to yield the floor. In a similar fashion Serranus

abandoned his veto in the face of near unanimous opposition from his fellow aristocrats

and because of appeals from a member of his family. Thus social pressure played as

382 Beard (1990), 38.

179 important a role as institutional power in bringing the matter of Cicero’s house to a

conclusion. We should also not forget the power of Clodius’ supporters among the plebs,

who attempted to get Clodius the victory through protest and violence. They did not

succeed, but they influenced the progress of events and certainly managed to delay the

reconstruction of the Porticus Catuli.

Our analyses of the Bona Dea affair and the battle over Cicero’s house have been

very instructive. Let us now turn our attention to our final example, the dispute over the

meaning of the response of the college of haruspices to an inquiry of the senate, made in

56 B.C. and preserved in Cicero’s speech De Haruspicum Responso.

180

CHAPTER 5

THE RESPONSE OF THE HARUSPICES

Our final study concerns an incident in 56 B.C. An extraordinary event occurred: a strange rumbling sound was heard near Rome in the Ager Latiniensis. Like many other phenomena which defied explanation, news of this ultimately reached the senate, which had the authority to declare any unexplained phenomenon a prodigium for the Roman

community. The senate called upon the haruspices, the college of Etruscan diviners

whom the senate often consulted for help in interpreting prodigies, and asked them to

explain the significance of the noise. The haruspices reported that the noise was indeed a

prodigium, and it indicated to the Romans that the gods were not pleased about various

impieties that had been committed.383 Clodius and Cicero immediately entered a public

contest over the meaning of the response: Clodius claimed that Cicero had committed the

impieties that had drawn the anger of the gods, while Cicero, of course, asserted the

opposite. Cicero published his speech on the matter, De Haruspicum Responso, which has survived for our perusal. The contents of this speech, as well as what it illustrates about contests over piety, will be the subject of this chapter.

383 For the text of the response, see below, pp. 178-179.

181 Conflicts such as the one between Cicero and Clodius over the meaning of the

haruspices’ response were the result of Roman religion’s structure and were a not

uncommon feature of civic life. As we have seen in previous chapters, ambiguity was an

inherent feature of Roman religion. Religious law might be engraved in stone, cast in bronze, or written on papyrus, but interpretation of that law was in the hands of humans, and the system allowed for a significant amount of discussion and debate before laws were implemented. Even when the exact texts of religious law were known and understood (and this was not always the case),384 new and unfamiliar situations could

arise, making it unclear whether or how Roman religious law should be implemented.

Fragmentation of religious authority could increase this uncertainty and make it more difficult to reach a decision on religious matters. Within this system, conflict was inevitable, and since Roman civic religion was both public and an integral part of the

Roman state, we would expect religious conflict to have political implications. We have also seen an ambiguity where piety was concerned. It was not always clear to the

Romans what constituted pious and impious behavior. A Roman politician might believe

that he had perfectly fulfilled all of his religious obligations, yet an observant rival might

challenge that assumption, and be able to make an arguable case. It was up to the various

civic institutions that had a say in religious affairs to sort out the conflict.

In this case, the spark that produced the conflict was the ambiguity in an

interpretation of an interpretation. Cicero and Clodius fought over the meaning of the

haruspices’ interpretation of the senate’s interpretation of the noise in the Ager

384 As we saw in chapter two, pp. 63-64.

182 Latiniensis as a prodigium. The haruspices’ response explained the reason for the gods’

anger, but it did not fix the error that had caused it. It was thus up to the Roman

community to decide if blame needed to be ascribed to any one, and if so, whom to

blame. The response of the college was vague enough that Clodius could plausibly

ascribe to Cicero the impious actions that had induced the gods to send the prodigy, and

Cicero could do the same to Clodius. Thus we have the beginnings of a contest whose

main issue was the piety of the contestants.

Cicero’s interpretation of the response illustrates another, little noticed feature of

Roman religious life. Piety towards the gods, that is, the proper carrying out of all

obligations owed by the Roman community toward its divine protectors, did not consist

only of proper ritual behavior. We will see that Cicero argued that the Romans owed the

gods more than just the carrying out of certain rituals. He claimed that the gods evaluated the Romans on their political behavior as much as on their ritual actions, and that if the

Romans wanted to regain the support of the gods, the Roman aristocracy had to change

its ways, putting aside internecine squabbling and focusing on the good of the whole

community rather than the benefit of a few individuals. This goes against the grain of

contemporary scholarship, which sees expiation of prodigia entirely in ritual terms. A

prodigium was a message to the Romans that they have failed some ritual obligation,

which can be therefore remedied by compensatory ritual offerings.385

385 For example: ‘An essential feature in the working of Roman divination is that the diviners provided very little factual information other than in the field of ritual. Their basic function was to proclaim divine approval, or its absence, and to suggest ritual [italics mine] by which it could be maintained or regained.’ Liebeschuetz, (1979), 7-8.

183

The Prodigies in 56 B.C.

56 B.C. was a strife-filled year. Elections for the aedileship were delayed by obstruction and violence, but when they were finally conducted in early January; Clodius won the office. In February, Milo went on trial for instigating political violence. Pompey and Cicero supported him, while Clodius prosecuted, and to the surprise of no one the trial itself caused fighting to break out. 386 These, however, were just peripheral parts of a larger struggle: the conflicts among the triumvirs and the conflicts between Pompey and

the boni. Scholars have extensively culled the sources looking for hints as to the motives

and aims of the players in the political maneuvers that took place in late 57 and early

56.387 By the beginning of 56 Pompey’s relations with Crassus and Caesar were strained because he suspected one or both of them of supporting Clodius’ relentless assault on him during the previous two years. Cicero hoped to exploit the tension among the triumvirs by bringing about some kind of understanding between Pompey and the boni, who were trying to overturn Caesar’s Campanian land law. Caesar was threatened by the candidacy of his enemy Ahenobarbus for the consulship of 55, because Ahenobarbus wanted to end

Caesar’s proconsulship in Gaul. In early April a meeting between Pompey and Caesar at

Luca resolved the differences between them.388 Pompey and Crassus would stand for the

consulship of 55 and get important proconsulships after their year of office. Caesar would

386 Cic. Att. 4.3, Q.Fr. 5 (II.1).3, Sest. 88-89, Mil. 40; Plut. Cic. 33; Dio Cass. 39.7-8.

387 Good recent surveys of the political maneuvering in Rome that culminated in the conference of Luca in April 56 can be found in Mitchell (1991), 166-181; Meier (1995), 265-273; Tatum (1999), 196-213; Seager (2002), 108-119.

388 Cic. Fam. 20 (I.9).9; Suet. Iul. 24.1; Plut. Caes. 21.5, Crass. 14.6, Pomp. 51.4; App. B.C. 2.17.

184 have his command in Gaul extended. Pompey seemed to be back in a dominant position

in Roman affairs.

It was in the middle of this politically unstable situation that a number of

prodigies were reported to the senate: an entire temple of Juno changed face ninety

degrees, a blaze of light was seen in the sky, a wolf entered the city, some citizens were

killed by lightning, there was an earthquake, and a subterranean noise was heard in the

Latin territory.389 As we saw in chapter two, the senate had the responsibility of deciding if any reported signs were actually prodigies about the religious health of the Roman

community. If it decided that a sign was a prodigium, it referred the matter to the proper

experts and decided what to do about the recommendations of these experts. In this case,

they referred the matter to the haruspices, the college of Etruscan diviners who regularly

advised the Romans on expiation of prodigies.390 The haruspices consulted their texts, which guided them in their interpretations of their subject,391 and presented their opinion

to the senate.

The haruspices’ response can be pieced together from Cicero’s speech on the

subject. Their verdict was as follows:

‘Whereas in the Ager Latiniensis a loud noise and a clashing has been heard, whereas expiations are due to Jupiter, Saturn, Neptune, Tellus, and the heavenly gods, whereas games have been incorrectly performed and profaned, whereas sacred and hallowed places have been profaned,

389 Dio Cass. 39.20.1-2 preserves the full list.

390 On the reporting and expiation of prodigies, and the role of the haruspices therein, see Thulin (1905- 1909), esp. (1909) 131-154; Bloch (1963), 112-157; Liebeschuetz (1979), 7-29; McBain (1982), Beard, North, and Price (1998), 37-39; North (2000); Scheid (2001), 69-72. One of the specialties of the haruspices was the interpretation of prodigies where lightning was involved.

391 On these texts, see Thulin (1909), 1-3, 57-75.

185 whereas orators have been slain in violation of the laws of men and of gods, whereas good faith and oaths have been neglected, whereas ancient and secret sacrifices have been incorrectly performed and profaned, beware lest, through discord and dissention among the best men, slaughter and danger be created for the senate and its leaders and they be without aid of the gods, as a result of which the state may pass into the power of one man and . . ., beware lest the state be harmed by secret schemes, beware lest honor be increased for the worse sort and those who have been rejected, beware lest the condition of the state be changed.’392

Most of these clauses are quite vague and general, and would almost be expected: they state that the gods have sent a portent because some rites were being neglected or were improperly conducted. The gods, after all, sent prodigia to warn the Romans that

the pax deorum had been broken, and since the pax deorum was maintained by the carrying out of sacrifices and games, a prodigium meant that something had gone wrong with a sacrifice, game or some other rite. The clause on the breaking of fides and sworn oaths also lacked specificity, since Roman officials swore a fairly large number of oaths in the course of their duties; under scrutiny there were probably a number of officials who could arguably be accused of breaking their fides. The clause referring to the slaying of orators (i.e., ambassadors) was more specific; it was not common for ambassadors in Rome to be assassinated. Here the response probably refers to the death of representatives of the Alexandrians who were in Rome to lobby against the restoration

392 ‘quod in Agro Latiniensi auditus est strepitus cum fremitu, postiliones esse Iovi Saturno Neptuno Telluri dis caelistibus; ludos minus diligenter factos pollutosque, loca sacra et religiosa profana haberi, oratores contra ius fasque interfectos, fidem iusque iurandum neglectum, sacrificia vetusta occultaque minus diligenter facta pollutaque; ne per optimatium discordiam dissentionemque patribus principibusque caedes periculaque creentur auxilioque divinitus deficiantur, qua re ad unius imperium res redeat exercitusque †apulsus deminutioque accedat†, ne occultis consiliis res publica laedatur, ne deterioribus repulsisque honos augeatur, ne rei publicae status commutetur.’ The text and translation are taken from Tatum (1999), 216; cf. Wissowa (1912), 545, n.4.

186 of their king.393 The last two clauses refer to the political turmoil of the 60s and 50s,

where politicians from across the spectrum employed violence against their opponents

and where boundless ambition appeared to many to be leading the state into a crisis.

Many might argue that the response referred to Pompey when it warned that the state should not pass into the power of one man, given his strong political position in Rome after Luca, but other candidates were available.394 In summary, the haruspices basically told the senate that the earthquake in the Ager Latiniensis indicated that the Roman

nobles should spend more time taking care of religious affairs and less time using

unscrupulous means to advance their personal careers at the expense of the community.

The latter part of the admonition merits comment: at first glance it might not

appear that the haruspices should concern themselves with the behavior of Roman

politicians outside the sphere of religion. In republican Rome, of course, it was not so

easy to separate religion and politics, but the haruspices were relatively specialized: so far

as the state was concerned their expertise was confined to the interpretation and

explanation of prodigia, signs that the pax deorum had been violated, and their job was to

advise the senate on how to expiate the prodigies and restore the relationship between

community and gods to its proper state. Normally this involved repeating flawed rites or

making supplemental offerings, or both. The college here would seem to have gone far

beyond this. Many scholars have suggested that the haruspices worked hand-in-hand

393 Though Cicero, Har. resp. 34 suggests other possibilities.

394 As we will see below, pp. 203-204., Cicero will have another idea about the ‘one man’: the gods were warning the Romans about Clodius.

187 with the senate (or certain senators) to support either a particular group’s political agenda or to work as a prop for aristocratic control over the community.395

It is not, however, necessary to see the response as a political manifesto. The

college was unusual in that it was not controlled by the old Roman nobility, as were the

other priestly offices. Instead it was composed of Etruscan nobles who passed down from

generation to generation the knowledge required to perform their tasks. Originally the

Etruscans were foreign diviners, giving them an unusual place in Rome’s religious

system.396 By 56, however, the Etruscans had received citizenship, so they were no

longer foreign experts advising the leaders of another community. Instead they were

advising their own leaders about problems affecting their own community. They were

very interested in the health of that community. Furthermore, the Romans did not

perceive the problems of the late Republic in political terms alone; the violence and

turmoil in the city sparked a crisis of confidence that was perceived in cosmological

terms.397 Not just the political system had gone awry, but the entire structure of Roman

life, including Roman religion, was in flux. In other words, the Romans perceived that

political upheaval was a symptom of a larger problem. We should not be surprised that

Roman citizens would look at the chaos in their communal life and perceive that the gods

395 Rawson (1991) 293-294, 302-312; cf. Thulin (1905-1909) I. 70-71, III.134-136; Bloch (1963), 52; Lenaghan (1969), 35; Goar (1972), 69; Tatum (1999), 216-217.

396 MacBain (1982), 43-79 argues that the Romans made use of the haruspices in order to bind the Etruscan aristocracy closer to themselves, particularly when Etruscan help was needed during the Second Punic War.

397 Alföldi (1997) gives a lengthy discussion of this phenomenon, illustrated through late republican numismatics. Verg. Ecl. 4, with its hope-filled prediction of a new golden age of peace and prosperity, provides the most famous literary example.

188 were punishing them for some transgression.398 The Romans perceived a connection

between political and divine health. The college of haruspices, in turn, perceived the

earthquake in the Ager Latiniensis to be a divine warning about the poor state of Roman

rites and of Roman politics.

After they gave their explanation and, presumably, suggested (unrecorded)

specific, ritual ways to restore the gods’ favor, the duty of the haruspices was finished. It

was left for the senate to decide what to do about their interpretation and

recommendation. In many cases the senate would simply follow the haruspices’ advice,

conduct rituals to propitiate the gods and consider the matter resolved. Not every

instance of reported prodigia caused a public brouhaha in which politicians exchanged

charge and countercharge of impiety. If it did, Roman public life would have devolved

into hopeless gridlock. Rosenstein noted that Roman religion had the potential to cause

public affairs to become bogged down if defeated generals could attribute their defeat to a

ritual error made by a rival aristocrat. This did not happen very often because ritual

procedure made it difficult for vitia to happen unnoticed and made it easy to correct them

when discovered.399 Similar features made expiations of most prodigia a matter of

routine. Once the haruspices or (quin)decemviri made their recommendation, the senate

398 It was for this reason that Augustus made a religious revival a key part of his civic program when he became emperor. He took especial care to make certain that religious rites were properly conducted, revived archaic religious organizations such as the Arval Brethren, and managed to find someone to fill the office of Flamen Dialis, which had been vacant for nearly sixty years. Beard, North and Price (1998), 181- 210.

399 Rosenstein (1990), 55-77.

189 would carry out their advice and the breach in relations with the gods was restored.400 If an individual were responsible for committing the impiety that caused the problem, in most cases the Romans left their punishment in the hands of the gods.401

So we have to explain how this unusual, though not unprecedented, struggle to

assign blame occurred. Our earlier investigations give us the answer: it was difficult for

the Romans to put an end to religious conflicts. The debate about the meaning of the

haruspices’ response was the continuation of the struggle over Cicero’s house, and, in

fact, a continuation of the Bona Dea affair. The Bona Dea affair wended its way before

the pontiffs, the senate, and a jury before Clodius could claim vindication, but so long as

Cicero could use it to undermine Clodius’ public image, the Bona Dea affair would never

go away. Likewise, the consilium plebis, the college of pontiffs, and the senate all had

their say in the matter of Cicero’s house, and even though Cicero got back his property,

Clodius could still argue that he had committed an impiety by having the temple to

liberty torn down. The response of the haruspices provided the two antagonists another

excuse, and more ammunition, to continue their conflict. If Clodius had been able to

convince his fellow citizens that his interpretation of the prodigy was correct, he would

vindicate himself and his piety, since he would have evidence that Jupiter regarded the

Temple of Liberty as properly consecrated and was unhappy that it had been torn down.

If Cicero were successful, he would be able to show the opposite, that the construction of

400 MacBain (1982), 82-106 provides a complete list of all known republican and early imperial prodigies and (if known) the means of expiation.

401 Scheid (1998), 26.

190 the temple was not really a pious act and that it had been proper for the Romans to remove it.

Clodius Interprets the Response

Some time after the haruspices delivered their response, Clodius summoned a contio and spelled out for the Romans his explanation of the haruspices’ response, blaming Cicero for inciting the gods’ anger.402 Clodius’ behavior reflects the pattern of religious conflicts that we observed in chapter two. Several clauses in the text were congenial to Clodius’ interpretation, so he could make a coherent argument that his interpretation was correct. The clauses regarding the desecration of religious sites and the murder of the ambassadors in particular were, as Elizabeth Rawson put it, ‘very convenient for Clodius’, because they allowed him to tar Cicero with one side of the brush and Pompey with the other.403 Clodius could plausibly argue that the desecrated

religious site referred to the temple of Liberty and that the mention of the slain ‘oratores’

referred to the Alexandrine ambassadors, whom Pompey’s ally Ptolemy had killed in order to advance his plans to regain the throne of Egypt.404 After Clodius had made his

case to his fellow citizens, it was up to the community as a whole, and the various groups

who had authority over religious matters, particularly the senate, to decide whether

Clodius’ interpretation should be accepted. Even though debates like this over the

402 Cic. Har. resp. 8.

403 Rawson (1991), 306. Rawson in fact suggests the possibility that some of the members of the college were supporters of Clodius.

404 Cic. himself, Har. resp. 34, concedes that the Romans thought the haruspices were referring to the Alexandrine ambassadors. There may, in fact, have been rumors that Pompey was in on the plot to kill the ambassadors; Strab. Geog. 17.1.2 states that Pompey was involved.

191 interpretation of haruspicial responses were rare, the general pattern is one we have seen many times in the previous chapters. Something potentially ambiguous or uncertain is encountered during the course of religious life, in this case the meaning of the response, and one voice of authority, in this case Clodius’, presented its interpretation to the public.

Since the interpretation included an assault on Cicero, we should not be surprised to find that Cicero soon responded.

Cicero Answers Clodius

Cicero could not afford to let Clodius’ attack on his piety go unchallenged.

Instead of speaking in contione, he chose to make his case in a speech before the senate.

This was a comfortable setting for Cicero, who could expect to find a receptive audience, and, since he was not a magistrate, he could not summon a contio. Furthermore, Clodius’ main base of support was the urban plebs, who could most easily be reached by a speech in the forum. Cicero chose to speak in the senate, which indicates he was mainly concerned about the opinions of senators. He defended himself against the charge that his tearing down of the temple had caused the gods’ anger and made a point-by-point attack on Clodius, using the text of the haruspices’ response as his chief weapon.

Not surprisingly he began his assault by continuing an old fight, the Bona Dea affair. Conflicts involving piety defied easy resolution, as opportunities to resurrect them frequently presented themselves. Cicero made Clodius’ speech at the contio into a joke, trying to get a laugh out of the senators, assuming (for purposes of rhetoric) that they would find it hilarious that the notoriously impious Clodius would be discussing religion in a speech. He exploited Clodius’ reputation for sexual adventurism, which he had

192 worked so hard to create, by comparing his impiety with his lack of self-control. 405 He told the senators that he was looking forward to the (famously unchaste) Clodius’ next lecture, on the subject of chastity.406 The juxtaposition of piety and chastity was clever

rhetorically, since it distracted the audience from a key point: Clodius could defend his

conduct in the Bona Dea affair. He had been acquitted. But, of course, Cicero did not

want to get mired in uncomfortable facts when he could glide along on convenient

innuendo. So far as civic institutions were concerned, Clodius was innocent of sneaking

into Caesar’s house, but, as we saw in previous chapters, institutions were not the only

players in Roman religious conflicts. Cicero wanted to bolster his own public image and

undermine Clodius’, because the senators’ decisions could be influenced by the

perception of the character of the antagonists.

The assaults on Clodius’ character, including his piety, had a logical sequel, a

defense of Cicero’s own piety, in particular of his efforts to get the temple of Liberty

removed. Here, of course, the facts were convenient, and Cicero placed them on center

stage, reminding the senate of all the various civic institutions which had concluded that

Cicero’s house could be rebuilt without any sacrilege.407 He started, interestingly

enough, with the comitia centuriata. The Roman people, he claimed, had already decided

that no impiety had redounded to Cicero because he had had the temple of Libertas

23 For a discussion of the relationship in Roman politics between religion and morality, see Tatum (1993b), which goes against the grain of recent scholarship and argues that Roman religion did have a strong moral component. See also Liebeschuetz (1979), 38-53.

406 Cic. Har. resp. 9.

407 Cic. Har. resp. 11-19.

193 removed.408 It had, of course, done no such thing. What the comitia centuriata had done

was recall Cicero from exile. Cicero would like his hearers to assume that since he had

been recalled, the restoration of his property and the removal of the temple was a mere

formality, one which stemmed from the centuriate law that had called him home. We

have already seen it was anything but. Cicero was attempting to bolster his argument that

he had not committed an impiety by putting the weight of the populus Romanus behind it,

since, as he pointed out, the power of the Roman people was supreme over every matter.

We might dismiss this as the usual Ciceronian shading of the truth when it suited his rhetorical strategy, but the strategy is worth noting. We have seen how disputes involving piety could become very complex, and how hard it was to resolve them. In the open-ended debate between Cicero and Clodius, where it was hard to gain a final and decisive victory, the best the combatants could do was try to build cases as unassailable as possible. Since so many groups in Rome had religious authority, Cicero tried to show that all of the relevant institutions had come down on his side of the issue. It was quite a stretch to claim that the populus Romanus had ruled in his favor on this issue, but it was necessary given the importance of the assemblies in Roman public affairs. If he had not made the argument, he would be exposing a weakness that Clodius could exploit.

The rest of his argument had a stronger foundation. He pointed out that the college of pontiffs had ruled that the site of his house was not properly consecrated, so it

408 ‘deinde eamdem domum populus Romanus, cuius est summa potestas omnium rerum, comitiis centuriatis omnium aetatum ordinumque suffragiis eodem iure esse iussit, quo fuisset.’ Cic. Har. resp. 11.

194 was perfectly pious to rebuild his home there.409 This too was a stretch, but one not quite

as large as the previous claim had been. The pontiffs did not really declare that no religio

remained attached to Cicero’s house. Instead they advised the senate that it was proper

under religious law to remove the temple, provided that Clodius had erred in the way he worded the law authorizing the destruction of Cicero’s house. In Cicero’s favor, the pontiffs who were also senators had supported his side of the argument, and the college had made the wording of its decision very favorable to Cicero’s case. Cicero is again

glossing over procedural minutiae for rhetorical effect, but he did so to strengthen the

defense of his piety, since the opinion of the college as a whole carried more weight than

that of individual pontiffs.

Cicero concluded his argument with his strongest piece of evidence: the decree of

the senate restoring his property. Here he did not need to ignore unpleasant procedural

details, since here it was impossible for his argument to get any stronger. The senate had

the authority to act, it acted decisively, and it gave Cicero the right to remove the temple and put his house back up.410

The rhetorical strategy Cicero used to defend his piety against assault reflects the fragmentation of religious authority in republican Rome. Cicero knew that any credible

defense of his conduct during the dispute over the temple of Liberty required him to marshal the support (real or merely plausible) of as many of the various groups who had a say over religious affairs as possible. Thus he repeatedly cited the many institutions that

409 ‘At vero meam domum . . . omni religione una mente omnes [pontifices] liberaverunt.’ Cic. Har. resp. 12.

410 Cic. Har. resp. 14-16.

195 had issued decrees and made laws regarding the sanctity, or lack thereof, of his Palatine property: ‘Nego ullo de opere publico, de monumento, de templo tot senatus exstare consulta quot de mea domo, quam senatus unam post hanc urbem constitutam ex aerario aedificandam, a pontificibus liberandam, a magistratibus defendam, a iudicibus puniendam putarit.’411 This fragmentation made conflict over religious issues so difficult to squelch once they had broken out, but a resolution could be obtained if all the various groups that did have a say in civic affairs could be brought over to one side. Thus this section of Cicero’s speech was his attempt to claim victory once and for all in the matter of his house by arguing that all sources of authority had supported his side of the case.

Having undermined Clodius’ credibility through vicious personal assault and bolstered his own by an appeal to the auctoritas of hallowed Roman institutions, Cicero shifted his attention to the response of the haruspices, giving his own interpretation of it that blamed Clodius for the gods’ anger.

Cicero’s Interpretation of the Response

The ambiguity of the response allowed Cicero to expound at length on it, explaining to his audience how Clodius was responsible for causing the Romans to fail to fulfill their obligations to the gods. He took the same source material that Clodius had used but offered a completely different interpretation of it.

The response lists several problems that have caused the gods to send the Romans a warning. The first was that the Romans owed sacrifices to Jupiter, Saturn, Neptune,

411 Cic. Har. resp. 16.

196 Earth, and the heavenly gods.412 The reason that the Romans owed these sacrifices, so

Cicero claimed, can be found in subsequent clauses in the response. The next clause went

as follows: ‘Whereas games have been incorrectly performed and profaned.’413 There were any number of mistakes that might be made in games and other rituals. Sometimes these were noticed immediately and were corrected, at other times they went unnoticed, and might be corrected only after a prodigium called the lapse to the attention of the community.414 Cicero suggests that one error in particular was never expiated: at the

Megalensia (the games to the Great Mother) in April 56, Clodius had staged a

demonstration which had disrupted the ceremonies.415 Cicero claimed that Clodius had

unleashed a group of slaves on the unsuspecting Romans as the games were being

celebrated, and that this disruption angered the gods. Clodius’ behavior might seem

inexplicable, but it was common for public demonstrations to be held at games. Romans

used them to cheer leaders that they favored and to boo those they did not. In 59 B.C.,

during a low point in Pompey’s popularity, the audience interrupted a play being

performed as part of the ludi to Apollo Diphilus by clamoring for the actor to repeat the

412 ‘[postiliones] (for the postulationes in the manuscripts) esse Iovi, Saturno, Neptuno, Telluri, Dis Caelestibus.’ Cic. Har. resp. 20. Postilio was an archaic word, and late antique and subsequent copyists tended to replace it with postulatio. See Lewis and Short, A Latin Dictionary, s.v. postilio; Lenaghan (1969), 111.

413 ‘ludos minus diligentes factos pollutosque.’ Cic. Har. resp. 22; Goar (1972) 62-63.

414 See Cohee (1994) for a discussion of repairing ritual error through repetition of the rite.

415 Cic. Har. resp. 22. Bruwaene (1948) suggests that Cicero could plausibly connect the Megalensia with the gods listed earlier as demanding a sacrifice because there were close connections between Tellus and Cybele, but Lenaghan (1969), 115 correctly argues that that level of connection was unnecessary. All Cicero was trying to do was to find an arguable case where Clodius profaned some games. The ‘slaves’ referred to by Cicero were probably freedmen or lower-class plebs, whose low birth Cicero exaggerated for rhetorical effect.

197 line, ‘by our misery, you are great’ over and over again.416 In 43 when the conspirators who had killed Julius Caesar were seeking to return to Rome, they had agents bribe part of the crowd assembled at the Ludi Apollinares to demand their recall, in hopes that the whole assemblage would take up the cry. At that moment, citizens opposed to Brutus

and Cassius burst into the theater and staged a counter-demonstration opposing the recall,

a display that must have been reminiscent of that at the Megalensia of 56.417 Thus, in spite of Cicero’s attempts to compare Clodius’ demonstration at the Megalensia with a slip of the tongue in a prayer before a sacrifice418 or a prodigium comparable to a swarm

of bees,419 public displays like the one at the Megalensia were not really all that

uncommon in the late Republic.420

But again, Cicero’s goal is to find arguable examples of impiety. Technically

Clodius may not have engaged in behavior that was all that unusual, but the religious

setting exposed him to a charge of impiety. If the charge made by Cicero was completely laughable, he would not have included it in his speech. He expected that his listeners

would find his arguments plausible. He was, however, stretching the definition of impiety

to an unusual extent. There was no evidence that Cicero’s fellow Romans regarded

416 ‘nostra miseria tu es magnus.’ Cic. Att. 39 (II.9).2.3. Pompeius’ chosen cognomen, Magnus, proved unfortunate for him in this circumstance.

417 App. B.Civ. 3.23-24.

418 Cic. Har. resp. 23.

419 Cic. Har. resp. 24.

420 Yavetz (1969), 18-24.

198 Clodius’ activities as the cause of a vitium.421 Therefore Clodius, according to the normal

operation of the civic cult, had not committed an act of impiety. Cicero’s rhetorical strategy indicates that he, at least, was willing to consider definitions of piety which lay outside the traditional scope of the word, or that he perceived that certain kinds of behavior usually tolerated by his contemporaries were in fact impious because they could lead to a breach of the pax deorum. He was attempting to get his audience to change how they viewed these kinds of behavior. Clodius, of course, could challenge Cicero’s definition and claim that he had conducted a political demonstration in a public forum where such demonstrations frequently occurred and perhaps even were regarded as completely proper.

Cicero’s next line of attack again shows how important it was for politicians to scrupulously maintain a reputation for piety, since any arguable case of impiety could be brought into public light at an inconvenient moment. Cicero tried to strengthen his argument by giving evidence that Clodius was serially impious. He reminded the senators how Clodius had treated the cult of the Great Mother at Pessinus. During Clodius’

tribunate there was a controversy in Pessinus between Deiotarus and Brogitarus over who

was rightfully priest at the shrine of the Great Mother, the same shrine from which the

Romans had imported their own cult of the Great Mother, whose games Cicero had just

accused Clodius of desecrating.422 Deiotarus was ruler of a little tetrarchy in Asia Minor

421 There is no suggestion that most Romans thought it necessary to conduct an instauratio of these games, and Cicero did not deign to mention Clodius’ behavior at the games in a letter to his brother from May, 56 (Q. fr. 11 (II.7)); Goar (1972), 63.

422 Har. resp. 28-29, 58, see also Dom. 129, Sest. 56-7, Mil. 73.

199 whom the senate, at Pompey’s urging, had recognized as king and ally and whom it had

made high priest of the cult of the Great Mother at Pessinus.423 According to Cicero,

even though Deiotarus held the priesthood and had been recognized as king, Clodius had

a law passed in the assembly which recognized Brogitarus, Deiotarus’ son-in-law and

fellow tetrarch, as the high priest in Deiotarus’ place. Cicero even gives Clodius’

motivation for such strange behavior—he was bribed. Clodius may have been guilty of

accepting a bribe,424 but even if innocent, his tampering with the cult hierarchy gave

Cicero the opportunity to make charges of bribery and impiety.

Of course, Cicero’s audience might question his claim that Clodius had been

impious when he replaced Deiotarus.425 Even though the Pessinus cult had been the

ancestor, as it were, of the cult of the Great Mother at Rome, replacing a priest there

might not be regarded as impiety, given that the cult at Pessinus was not part of the

Roman civic cult. Yet the senate’s purview over religious affairs could be quite

expansive. We have already seen how, quite unexpectedly to Q. Fulvius Flaccus, the

senate chose to regard a temple in Bruttium as within its purview and how Pleminius was

brought back to Rome and tried, for among other things, his treatment of a temple in

423 Deiotarus and Cicero would eventually become closely connected. Deiotarus’ little kingdom in southern Asia Minor bordered on Cicero’s province in Cilicia, and Deiotarus gave Cicero help during his governorship. Deiotarus also got involved in the civil war between Pompey and Caesar, and both he and Cicero supported Pompey. Finally, Cicero defended Deiotarus before Caesar when the victorious Caesar was deciding Deiotarus’ fate. See Gotoff (1993), xxxviii.

424 Of course, the financial motive need not have been the main reason for the arrangement with Brogitarus. Tatum (1999), 168-169 argues that Clodius primarily wanted to strike at Pompey by ruining his eastern settlement, which he had worked so hard to get ratified.

425 Goar (1972), 63 suggests that Cicero introduced a discussion of Pessinus to cover up the manifest weaknesses in his discussion of the Megalensia in sections 22-4, but Cicero’s discussion was relatively clever, given the connection between Pessinus and Rome, if one is willing to accept Cicero’s interpretation of the kinds of actions that can be defined as impious.

200 Locri.426 Cicero was asking the senators to consider actions taken in regard to the cult at

Pessinus as if they concerned the Roman civic cult. He was asking the senators to

reshape their definition of impiety.

The Destruction of Sanctuaries

Cicero next moved to the subject that was most damaging to him personally, the

desecration of sacred sites.427 To provide a plausible defense to Clodius’ charge that the

removal of Liberty’s temple had broken the pax deorum, Cicero needed to find other

plausible candidates for the desecrated sites mentioned in the response. He began by

discussing the fate of Q. Seius, whom Clodius supposedly had killed in order to gain

possession of his property on the Palatine.428 He claimed that he was prepared to prove

that, before Clodius seized Seius’ house and had it torn down, there were shrines on the

site. Thus Seius’ murder was more than just a land grab; it was an act of impiety.429

First, the murdered man’s property became part of Clodius’ shrine to Liberty, and, second, by destroying the house, Clodius destroyed shrines ensconced within it.

Next, Cicero referred to some impiety involving the Temple of Tellus, the exact meaning of which is obscure. Apparently someone has blamed Cicero for opening up a magmentarium,430 but Cicero’s only involvement seems to be that, for whatever reason,

426 See above, pp. 60-68.

427 Goar (1972), 59-61.

428 Cic. Har. resp. 30, Dom. 115, 129.

429 Of course, we only have Cicero’s word that Seius was murdered at all; Clodius, no doubt, would have had a very different story to tell.

430 Emended for the text, which has acmentarium. A magmentarium was a storehouse for meat leftover from sacrifices. See Lenaghan (1969), 143. 201 he had curatio over the religious site that was ruined. 431 Cicero claimed that Clodius’ brother, Appius Claudius Pulcher, had actually been the one to violate the sanctuary.432

Cicero further argued that the desecration of the magmentarium was related to the grain shortage that recently troubled Rome, a particularly important point for him, since

Clodius had blamed him for the shortage which had afflicted the city in the last half of

57.433

Cicero pointed out other desecrations of religious sites. He accused L. Calpurnius

Piso, consul in the year of his exile, of destroying a shrine of Diana located on the

Caelian hill. It was apparently well known, since Cicero claimed that many senators had

conducted rites there.434 He also claimed, without getting into specifics, that Sex. Atilius

Serranus, the tribune who had vetoed the senate’s resolution to restore Cicero’s property,

had been guilty of numerous violations of sacred sites.435 Cicero despised both men for

their support of Clodius, and we should not be surprised to see their names crop up.

What Cicero’s attack illustrates is how easy it was to bring accusations of impiety against

a fellow citizen. Rome was a minefield of religious sites; every crossroad and every

home contained shrines. The territory within the pomerium was littered with sites of

431 Courtney (1960), 98-99.

432 Cic. Har. resp. 31; Courtney, (1960), 99.

433 He had to defend himself repeatedly against complaints that he was responsible for the shortage. See Red. sen. 34, Red. pop. 18, Dom. 15-17.

434 ‘ L. Pisonem quis nescit his temporibus ipsis maximum et sanctissimum Dianae sacellum in Caeliculuo sustulisse? Adsunt vicini eius loci; multi sunt etiam in hoc ordine, qui sacrificia gentilicia, illo ipso in sacello, stato loco anniversaria factitarint.’ Cic. Har. resp. 32. Nothing is known about this shrine other than what Cicero says about it. Plattner and Ashby (1929), 150 suggest that it was a private construction.

435 ‘A Sex. Serrano sanctissima sacella suffossa, inaedificata, oppressa, summa denique turpitudine foedata esse nescimus?’ Cic. Har. resp. 32.

202 religious import. Many of these were probably private or familial sites, and destruction or

alteration of these was probably inevitable as properties were bought and combined and

houses built or rebuilt. Cicero had already used this fact as part of his arsenal against

Clodius. In the de Domo he reminded the pontiffs that by tearing his house down to make

way for Liberty’s shrine, he had uprooted the altars to his family’s gods.436 Technically, of course, private shrines such as those in Cicero’s house and, if Platner and Ashby are correct, the shrine of Diana on the Caelian that Piso was supposed to have destroyed, were of limited interest to the state, but even though there was an important distinction between state-sanctioned and private religious sites, the ease with which public and

private were convertible in Roman oratory meant that there would be plenty of

opportunities for watchful Roman politicians to find evidence of impiety. The nature of

Roman public life meant that there would also be plenty of opportunities to bring these impieties to the notice of one’s fellow citizens. Just as Cicero had expanded the definition of impiety in his discussion of the games that were violated, in this section he expanded the definition to include treatment of private religious sites.

Cicero concludes this section by going back to the subject of his house. He argued that it was absurd for anyone as notoriously impious as Clodius to claim to have sanctified the site on the Palatine. The only reason that his house would have any aspect of ‘religio’, meaning in this instance that it would be dangerous to approach, was the fact

436 E.g, at Dom. 108.

203 that it abutted Clodius’ home, and so was in visual range of the ‘rites’ (Clodius’ notorious impieties and lapses in morality) that Clodius performed there.437

Cicero had to stretch his argument in this section to distract his audience from the

fate of the Temple of Liberty, but he was able to find plausible examples of impieties

committed by Clodius, a fact that merits our attention. Roman life was filled with

rituals: personal, familial, and civic, and the possibility of committing ritual error was

very large. It was probably because of this that the Roman system developed easy ways

to correct ritual error. But because Roman civic life interwove religion and politics, there

was a danger that charges of impiety could, as Rosenstein described them, become

‘something of a loose cannon on the quarterdeck of the Republic.’438 In this particular

case, the availability of material for discussion certainly made it very difficult to bring the

conflict involving the piety of Cicero and Clodius to an end. There were simply too

many opportunities to drag the Bona Dea affair or the Temple of Liberty back into public

view, bolstering charge and counter-charge with newly discovered examples of impiety.

The number of fora for public discussion and the absence of any authority that could

absolutely settle the matter made it extremely difficult to end a contest over piety if the

disputants were determined to keep fighting. And the world of Roman rhetoric, which

allowed hyperbole, and perhaps even outright invention, further complicated the process.

437 Cic. Har. resp. 33.

438 Rosenstein (1990), 61.

204 Clodius and the Ambassadors

Cicero’s discussion of the next clause, which deals with the slain oratores, also

illustrates the permeability of the line between religion and politics as well as the breadth

of the concept of pietas, at least as it appeared in public discourse. It seemed impossible

to accuse Clodius of impiety based on this clause of the text, since no one would credit

any suggestion that he had anything to do with the murder of the Alexandrines, yet most

Romans believed this clause referred to them.439 Yet Cicero was able to make an

argument that, in fact, not only Clodius, but another of his enemies, had committed

impious acts by harming ambassadors.440

What to do about Egypt became a civic nightmare for the Romans in the 50s.

Egypt was the last of the great Hellenistic successor states to maintain something

resembling independence. A Macedonian monarchy still ruled, though of course the

Egyptians were very careful to respect the power of Rome, which held the rest of the

Mediterranean. Egypt offered wealth beyond dreams of avarice to an invader; the fertile

Nile provided a huge bounty of grain, which would be irresistible to any power, but it

was particularly important to Rome, which had grown beyond the power of Italy to

feed.441 In 57 B.C. King Ptolemy Auletes had made himself so odious to the citizens of

Alexandria that they had revolted and driven him from the throne. He fled to Rome, offering a huge bribe to whichever politician could see to getting him put back in his

439 Cic. Har. resp. 34.

440 Goar (1972), 64-65.

441 Rickman (1980), 113-118.

205 rightful place. Unfortunately the magnitude of the potential bounty gridlocked the

system as powerful nobles mustered all of their resources in attempts to gain the

commission to bring the king back home. At the same time many among the aristocracy

moved to prevent anyone from restoring Ptolemy, fearing that the potential wealth that

such a person could command would make him beyond challenge. The consul for 57, P.

Cornelius Lentulus Spinther, whose efforts on Cicero’s behalf during the exile had won him the orator’s gratitude, was the favored candidate. He was due to become proconsular governor of Cilicia and Cyprus, so Egypt fell more or less within his purview, and he left

Rome before the end of the year to take up his post. His hopes would soon be dashed, however, because Pompey coveted the job and tried to get it for himself, all the while publicly maintaining support for Spinther. Pompey’s involvement raised the stakes of the

affair, since Pompey, while powerful, had a large number of powerful enemies, and the

obstructionism made so easy by the republican constitution ensured that at the end of the

year nothing had been decided. In January 56, the senate received reports that lightning

had struck a statue of Jupiter on the Alban mount. It judged the report a prodigium and

called upon experts to interpret it. Normally the haruspices would be called in to give

their verdict on this affair, as they were renowned for their wisdom on the subject of

portentous lightning, but in this case the senate chose to call in the quindecemviri sacris

faciundis, a college which was comprised of Roman, not Etruscan, aristocrats. The

quindecemviri had access to the Sibylline Books and concluded that the prodigium

showed that the gods were unwilling to allow Egypt to be invaded with an army. This

threw a monkey wrench into the entire process, and the question of what to do about

206 Egypt was delayed. 442 For our purposes, the importance of this convoluted affair lay in

the fact that in 57, after the king had reached Rome to ask for help, he was soon followed

by emissaries from the Alexandrines who were sent to undermine the king’s mission.

The king responded by having the emissaries assassinated.

Cicero mentioned that the ‘general opinion’ (sermo) was that the clause in the

haruspices response referring to the ‘oratores interfectos’ referred to the murder of the

Alexandrines.443 It is interesting that there was ‘general opinion’ about this subject. The

text of the response had apparently been made public, and far from being an abstruse

topic of interest only to a few, it was apparently being discussed by the man on the street.

This is not the only example of a divinatory pronouncement being discussed publicly.

Earlier that very year, when the quindecemviri wanted to report their interpretation of the

lightning strike on the Alban mount only to the senate, C. Cato insisted that they make it

public so that everyone would know their findings.444 In both cases personal and political

rivalries played a part in ensuring that the whole community would play a role in

deciding matters relevant to the civic cult. The competition between Cicero and Clodius

helped keep the response of the haruspices in public view, while Cato’s opposition to

Pompey made it inevitable that not just the senate but the citizen body as a whole would be able to evaluate the opinion of the quindecemviri as to the significance of the prodigium on the Alban mount.

442 Mitchell (1991), 162-164 and Tatum (1999), 194-196, 199-201 both provide good surveys of the Egyptian imbroglio, with sources.

443 ‘De Alexandrinis esse video sermonem.’ Cic. Har.resp. 34.

444 Tatum (1999), 200.

207 Cicero’s rivalry with Clodius played a similar role in keeping the health of the

civic cult in the public eye. Cicero did not concede that the general opinion was the end

of the story, and found other examples of impiety that warranted the public’s attention.

Cicero argued that the response did not refer only to the murder of Alexandrines, but to

the actions of Clodius and of L. Calpurnius Piso, another of his enemies. He blamed

Clodius for conspiring with the Chian Hermarchus to kill Theodosius, a legate sent to

Rome to meet with the senate.445 He made a similar accusation against Piso. He claimed

that while governor in Macedonia, Piso lured Plator of Orestis to his provincial residence and, even though Plator had the status of an ambassador, Piso had his doctor slowly and brutally put the man to death.446

It might be tempting to dismiss Cicero’s invective as merely exploiting religion,

in this case by making accusations of impiety, for political purposes. Yet there is more going on here than political one-upsmanship. First, it is entirely possible that Cicero was

genuinely outraged by the fates of Theodosius and Plator and disgusted at how Clodius and Piso treated ambassadors whose protection was guaranteed by the gods. Furthermore, this is clearly an issue that merited public attention. Once the haruspices had indicated

that the gods were unhappy with the way the Romans had been treating ambassadors, it

was legitimate to discuss what kinds of behavior had angered the gods, so that this kind

of behavior could be avoided. This discussion of religion had relevance for the political

health of the Roman community as a whole. It was certainly of interest to all Romans

445 Cic. Har. resp. 34. Unfortunately we know nothing of this incident except this one reference.

446 Cic. Har. resp. 34, Pis. 83-84.

208 that they make proper choices about who should be placed into positions of community

leadership. By turning each other’s personal piety into a public issue, Cicero and Clodius

were giving all of their fellow citizens a chance to discuss whom they should trust with

political and religious leadership.

The Bona Dea Affair Redux

The text of the response gave Cicero the opportunity to raise the issue of the

Bona Dea affair again, an opportunity he could never resist. Even if some of the early

clauses in the text were congenial to Clodius, Cicero must have taken heart when he got

to the middle of the text. The last two transgressions mentioned in the response were that

‘good faith and oaths have been neglected, [and] ancient and secret sacrifices have been

neglected and profaned’. Cicero argued that these warnings referred to Clodius’ behavior

in 62 and 61.447 The sworn oaths neglected, so Cicero claimed, were the oaths taken by

Clodius’ jurors when he bribed them to acquit him of incestum.448 This struck the jurors

with the forehand and Clodius with the backhand, since Clodius’ best argument that he

had not committed any impious act in 62 was his acquittal by those very jurors.449 By arguing that the acquittal was invalid, and more than invalid, an act of impiety itself,

Cicero undermined Clodius’ defense of his piety.

Furthermore, Cicero concluded that the section of the text referring to the pollution and neglect of ‘ancient and secret sacrifices’ alluded to Clodius’ profanation of

447 Goar (1972), 64.

448 Har. resp. 36.

449 As Cicero himself points out in Har. Resp. 37: ‘Nisi forte tibi (Clodius) esse ignotum putas, quod te iudices emiserunt excussum et exhaustum, suo iudicio absolutum, omnium condemnatum, aut quod oculos, ut opinio illius religionis est, non perdisti.’

209 the rites to the Good Goddess. The rites to Bona Dea were very ancient, nearly as old as

the city,450 Cicero claimed, and they were certainly secret and not to be profaned by

Clodius’ presence.451 Cicero then dealt with Clodius’ potential responses. He asserted

that Clodius could not claim that the goddess had forgiven him, arguing that neither his acquittal nor his escape from being blinded, the punishment traditionally inflicted by the gods on desecrators of the rites, proved that the he had received forgiveness.452 Cicero

pointed out that though the gods did not strike Clodius blind, they clouded his vision in

another way by making him lust after his own sister.453 Cicero, therefore, continued to

argue that Clodius acted impiously, while he displayed his own faith in Rome’s religious

system by confidently asserting that the gods had, in spite of the appearances, punished

Clodius for those impious acts. Cicero absolved the gods from blame for Clodius’ career,

arguing that the gods had struck him down with a different form of blindness.454

At the risk of being repetitive, let us note that Cicero’s arguments again demonstrate the difficulty in bringing contests over piety to a resolution. Over five years had elapsed since Clodius acquittal of incestum, yet even though Roman institutions had given their verdict, the issue refused to go away.

450 Brouwer (1989), 259-260 disagrees with Cicero’s assessment of the age of the Roman cult to the Good Goddess, but Cicero was probably not being intentionally deceptive; he may not have known exactly how long the cult had been in Rome, and, in any case, Cicero’s testimony is the earliest we have on the subject.

451 Cic. Har. resp. 37.

452 Cic. Har. resp. 37. Clodius, of course, would hardly claim that he needed to be forgiven.

453 Cic. Har. resp. 37-38. And note the connection between piety and morality which some contemporary scholars deny existed in Roman religion, e.g. Scheid (1998), 22: “C’est un religion qui ne comporte pas de code morale; le code éthique qui la régit est la même que celui qui régit les autres relations sociales.” For a dissenting view, see Tatum (1993b).

454 ‘deorum tela in impiorum mentibus figuntur.’ Cic. Har. resp. 39.

210 Clodius’ Career: Discord and Impiety

The next clause in the text gave Cicero an opportunity to indict all of Clodius’

public career as an act of impiety,455 which reveals the blurriness of the line between

religion and politics in Roman public life. For the response of the haruspices was not just

explanatory. It was prescriptive: it warned the Roman people to avoid certain kinds of

public behavior if they wanted to maintain the goodwill of the gods. The clause, which

Cicero emphasized that he was reciting verbatim, read as follows: ‘Beware lest, through

the discord and dissention among the best men, slaughter and danger be created for the

senators and its leaders and they be without the aid of the gods, as a result of which the

state may pass into the power of one man.’456 This prescription implied, or so Cicero

alleged, that the gods were unhappy with civil dissention in Rome. Though his prime

targets in this section of his speech were those among the boni who were willing to

squabble among themselves instead of uniting against Clodius, Clodius himself did not

escape censure. Cicero labeled Clodius as the author of civil discord457 and took the

opportunity to review his life, arguing that Clodius committed one act of civil discord

after another, which had brought down upon the Romans the wrath of the gods. The text of the response enabled Cicero to link piety and political style. This link would not seem obvious, but in Roman public life the connections between religion and politics emerge in places that often seem unusual to a modern observer.

455 Goar (1972), 66-67.

456 Cic. Har. resp. 40.

457 ‘Quis igitur optimatium discordiam molitur? Idem (Clodius) este….’ Cic. Har. resp. 40.

211 To drive his point home, Cicero provided a number of examples of Clodius’

supposed impieties and efforts to promote discord. Clodius conspired to undermine the loyalty of the army to their general during his military tribunate, and after he returned

home he conspired with Catiline to overthrow the state.458 Then he reminded the senate of the egregious impiety at the festival to the Good Goddess. For Cicero, this particular horse would never be too dead to flog, so he again took the opportunity to paint a picture of the effeminate Clodius dressed up in woman’s garb and violating Roman sacred rites.459 Then Cicero described Clodius’ subsequent career, emphasizing his attempts to

destroy civic harmony. The culmination was Clodius’ tribunate, wherein the master of

discord vented his fury first against Cicero, the suppressor of internal revolt, then against

Pompey, the victor against foreign enemies.460 It was important for Cicero to defend

Pompey, since Pompey’s dominant position in Roman politics in 56 B.C. made him the most likely referent of the clause that warned about power coming into the hands of one man.461 Cicero interpreted the passage as referring to Clodius, however. At the climax of

this section of the speech, Cicero wondered aloud to whom other than Clodius the gods could refer, when they warned about civil discord and monarchy in the text of the response.462

458 Cic. Har. resp. 43.

459 Cic. Har. resp. 44.

460 Cic. Har. resp. 45-52.

461 Goar (1972), 69.

462 ‘Quas ego alias optimatium discordias a dis immortalibus definiri putem.’ Cic. Har. resp. 53.

212 Cicero’s rhetoric demonstrates how difficult it can be to distinguish between

religion and politics, particularly when we examine the connections between the two in

public life. Clodius’ political tactics, Cicero argued, had attracted the wrath of the gods, who were warning the Romans not to allow him to continue to disturb the harmony of the optimates.463 There was a certain logic to Cicero’s argument. Impiety, as it was

normally defined, consisted of ignoring obligations owed to the gods (or family).464 The consequence of impiety toward the gods was a fracture in the pax deorum, which would have tremendous implications for civic life, since without the gods’ aid, any civic activity could turn out to be a disaster for the community. Cicero was inferring that since the consequence of impiety was the wrath of the gods, Clodius’ career, based on fomenting discord, was impious, because the text of the response clearly indicated that the gods were displeased by those who fomented discord. A further inference could be drawn by his listener: if civil discord were impious, then pious behavior consisted of maintaining public harmony, or at least the harmony of the boni, the elite men whom Cicero hoped would dominate public affairs. Thus, Cicero enjoined the senators to wipe discord out of the community. The result, he promised, would be the same as if they had expiated a flawed rite: all fears of those things portended would evaporate.465 Cicero’s conception

of piety extended beyond just fulfillment of ritual obligations. According to Cicero, the

463 Cic. Har. resp. 53-54.

464 Review the discussion in the introduction, pp. 7-8.

465 ‘Tollatur haec e civitate discordia. Iam omnes isti qui portendentur metus extinguentur.’ Cic. Har. resp. 55.

213 gods wanted more than just sacrifices. They wanted the Roman nobility to conduct their

political lives in an appropriate manner.466

Cicero continued along these lines. The next two clauses in the response warned that the Republic should not come to harm through secret schemes467 and that neither the

baser nor the rejected should be more honored.468 Finally, the Romans were warned not

to change the status quo.469 Cicero interpreted these clauses as referring to Clodius,

making him out to be the object of the gods’ warnings, and thus again equating Clodius’

political behavior with impiety. It was Clodius, so Cicero claimed, who was hatching

conspiracies. Apparently he recently demanded a cessation of public business, which

Cicero argued was proof of some kind of conspiracy because such could only happen

with the support of a number of people.470 He further argued that ‘repulsi’ did not refer

rejected office holders but instead to those who were willing to engage in any kind of

behavior in order to advance their own personal careers.471 Cicero asserted that there was

nothing to fear from the repulsi, since the Romans had already taken steps to deal with

466 Goar (1972), 73 sees Cicero as proposing ‘an ethical religion as against one that is purely formalistic’, of which he approves, since he sees the formalism of Roman religion as somewhat empty of real meaning.

467 ‘Ne occultis consiliis res publica laedatur.’ Cic. Har resp. 55.

468 ‘Ne deterioribus repulsisque honos augeatur.’ Cic. Har.resp. 56.

469 ‘Ne rei publicae status commutetur.’ Cic. Har. resp. 60.

470 Cic. Har. resp. 54. Cicero really stretched his argument here, so, wisely he did not belabor this point, but instead quickly moved to the next section of the response.

471 Cic. Har. resp. 55.

214 them even before the response was issued.472 The deteriores, however, still threatened the community, and Clodius was their leader.473

Cicero continued, invoking the immortal gods and reminding his audience of

Clodius’ impieties, then juxtaposing his impieties with his political behavior.474 The list

of personal impieties is familiar: the destruction of his family gods through his adoption,

violation of the rites to the Good Goddess, and a new one, the burning of a temple ‘to

those very gods by whose aid other fires are quenched.’475 Cicero juxtaposed this litany

of impieties with a discussion of Clodius’ activities de patria, denouncing his political

tactics and his political program, including his trampling of the auspices and his repeal of

the leges Aelia and Fufia.476 Any actions arguably aimed at stirring up discord became

472 Cic. Har. resp. 56. It is not exactly certain to what Cicero was referring. Watts (1923), 392 thinks it referred to the recall of Cicero from exile, while Lenaghan, who sees all of section 56 as referring specifically to the candidacy and failure of P. Vatinius for the aedileship, (1969), 186-187, thinks that the ‘evil’ was corrected by the assembly’s rejection of Vatinius’ candidacy.

473 Cic. Har. resp. 57. Lenaghan (1969), 185, believes that the haruspices originally conceived of the deteriores and the repulsi as the same people.

474 Cic. Har. resp. 57-58.

475 ‘idemque earum templum inflammavit dearum, quarum ope etiam aliis incendis subvenitur.’ Cic. Har. resp. 57. This probably refers to a riot by Clodius followers that resulted in the burning of a Nymphaeum in the Campus Martius: Lenaghan (1969), 188. As Lenaghan points out, Cicero mentions that Clodius has burned temples in a number of other speeches, including Red. pop. 14, Mil. 73, 14, Sest. 84., Parad. 4.31. In addition, Cael. 78 makes the same charge against Sex. Cloelius, Clodius’ henchman. Of these speeches, only the Pro Milone gives any specifics about which temple was burned: ‘[Clodius] qui aedem Nypharum incendit ut memoriam publicam recensionis tabulis publicis impressam extingueret.’ All of these sources except the Red. pop. date after Har. resp., so it is possible that the burning of this temple took place between 57 and 56. If Clodius’ gangs had actually burned a temple it is hard to explain why Cicero did not point this out to the pontiffs in 57. The passage in the Red. pop. may have been a rhetorical exaggeration or referred to the burning of some non-public religious site. As we have seen, much of Roman real estate could be arguably defined as sacred, since there were many public and private shrines and since every home had altars to the gods.

476 Of course, Clodius would have put quite a different take on these events. See the discussion earlier, pp. 41-42. Also note the ease with which Cicero connected personal moral behavior to public religious behavior to political behavior. The various elements of a public leader’s life were considered 215 fair game for Cicero, and since republican political activity made confrontation, debate,

and argument inevitable, Clodius had provided Cicero plenty of material to work with.

Cicero’s argument could work rhetorically because religion was so embedded in civic life

that it was not a stretch for his listeners to perceive activities that destabilized Roman

politics as more that simply dangerous or even traitorous, but, in fact, as impious. The

gods, after all, had as much invested in the Roman community as the citizens.477 The line between impious behavior and politically unacceptable behavior was thin, and, of course, what constituted politically unacceptable (and therefore impious) behavior was to a significant extent in the eye of the beholder. In the realm of politics and rhetoric, piety and impiety had a very broad scope, indeed.

Pietas and Concordia

Cicero concluded his address by explaining how the Romans could avert the gods’ wrath. In order to prevent things from getting worse, the Romans must maintain concord.478 This was a theme that was dear to his heart, particularly after his return from

exile. It was through the concordia ordinum, the harmony among senators and knights,

that Cicero believed the political chaos afflicting his era could be prevented. In his

conclusion to his speech on the response of the haruspices, he elevated concordia from

his own personal wish to a divine command, taking the response as proof that his ideas

interconnected, and serious problems in one area were considered indicators that there may be misbehavior in others; see Tatum (1993b) on the connection between religion and moral behavior.

477 Scheid (1998), 124-128, in fact, argues that the Romans conceived of the gods, at least in part, in roles comparable to those of fellow citizens.

478 ‘Qua re hunc statum, qui nunc est, qualiscumque est, nulla alia re nisi concordia retinere possumus.’ Cic. Har. resp. 61.

216 were divinely sanctioned. For Cicero, the source of the gods’ anger was primarily

Clodius,479 and it was because the Romans had failed to punish Clodius that the gods had

sent them prodigia. But Cicero also pointed out that the Roman nobility had it in its

power to assuage the gods and to take the proper steps to avert the portents which the

gods had continued to send them. Punishing Clodius was the first step, and the

traditional expiatory rites were certainly necessary, but the Roman elite had to start

working together if they wished to avert the catastrophe signaled by the gods’

warnings.480 Thus expiation required more than ritual. It required the senators and

magistrates to alter their behavior.

Cicero’s argument illustrates the pitfalls of trying to understand Roman religion

only through narrow legalism.481 His claims about how to expiate the prodigy of the

Ager Latiniensis really do not correlate with what we know about how Roman ritual worked. When prodigies appeared, it was the responsibility of the Romans to figure out what rituals were necessary to satisfy them and then carry those out.482 Once the proper

rituals had been conducted, the gods were satisfied and the Romans’ responsibilities

ended. Yet in the De Haruspicum Responso, Cicero takes expiation of a prodigium

479 ‘nam ut meliore simus loco ne optandum quidem est illo (Clodio) impunito. . . . Quo ne trudamur, di immortales nos admonent, quoniam iam pridem humana consilia ceciderunt.’ Cic. Har. resp. 61.

480 ‘Sed faciles sunt preces apud eos, qui ultro nobis viam salutis ostendunt: nostrae nobis sunt inter nos irae discoridaeque placandae’. Cic. Har. Resp. 63.

481 A point Goar (1972), passim makes often, but Goar sees this attitude as an improvement over Roman formalism. It is best to avoid judging religion in this way. Instead, Cicero’s argument shows that the Romans could conceive of piety outside a purely ritual context, which expanded the scope for public discussions of piety and impiety.

482 The process is summarized by Scheid (1998), 99.

217 outside the realm of ritual and into the realm of political tactics, which is quite a leap.

We must also keep in mind that he intended his speech to persuade, so he could not undermine his arguments by claiming things that were completely outlandish. This indicates that, even if the state cult operated on a ritual level, the Romans conceived of the operations of the gods as more than just ritual, and, in fact, were capable of conceiving of piety toward the gods as more than simply offering the appropriate rituals.483 Cicero’s analysis of the prodigium shows that many kinds of public behavior

could be conceived of as pious or impious.

Conclusions

The conflict between Cicero and Clodius on the response of the haruspices

demonstrates perhaps better than anything else that the Romans observed each other’s

religious behavior and were willing to call their fellow citizens on the carpet if they

observed any impieties. Cicero used the response to submit a whole catalog of Clodius’

supposed impieties for the consideration and judgment of his fellow senators, and while

we do not have Clodius’ speech before the contio, we can be certain that he reminded his

fellow citizens that Cicero had the Temple of Libertas torn down. This was not, however,

a sign of decay. Even if the parties in a dispute were trying to settle personal grudges or

advance political agendas by making piety a public issue, this did not mean that their only

goals were personal and political and that they had no real concern for the health of the civic cult. A Roman politician could satisfy his own personal desires and still work to improve the religious health of the community. It is hard to analyze motivation from this

483 Tatum (1993b) makes a similar point in regard to Roman morality. Tatum argues that Roman religion did have a moral component.

218 distance, though, so it is very difficult to ascertain whether, Cicero, e.g., or Clodius was

genuinely concerned with the civic cult or whether they were simply using whatever

weapons they thought effective to settle personal or political scores. But if we put

questions of motivation aside, the very fact that they employed piety as a such a weapon

demonstrates that they perceived that their fellow citizens and their fellow aristocrats,

whose opinions they were trying to sway, wanted the civic cult to be properly maintained.

We also see again that the fragmentation of religious authority and the structure of

the civic cult encouraged disputes over piety to form and made them very difficult to

resolve once they had come into existence. As far as Roman religious and legal

institutions were concerned, the Bona Dea affair and the fate of Cicero’s house had been

decided. Yet Clodius and Cicero kept the issues alive. There were four basic reasons

that they could do so. First, piety was central to a politician’s public image, and if a

Roman could affix a reputation for impiety upon his enemy, he might seriously damage

his opponent’s public career. Second, no religious (or political) conflict need be regarded

as truly lost, given that the various institutions that had authority over civic life in Rome

could always reverse a decision. Cicero’s own fate demonstrates this, since he suffered exile and the consecration of the site of his home, but within two years had made a

triumphant return and gotten his property restored. As a consequence, there was every reason for Cicero and Clodius to treat every defeat as a temporary setback and keep

launching attacks on each other’s piety. Third, they could continue because there was no one to make them stop, and there were plenty of opportunities to continue. Roman civic life distributed authority among so many different groups and individuals and provided so

219 many opportunities for public discussions that disputes among civic leaders, including

those over religious issues, could continue for a long time if the two sides were willing to

keep fighting. Fourth, conflicts over piety were complex because piety was not normally

a crime, which made it a complicated process to determine what kind of community

involvement, if any, was needed to deal with the perpetrator of an impious act.

Normally, if an impiety ruptured the pax deorum, the community repaired the breach

through ritual and moved on, but sometimes the community decided that it should

intervene when an impiety endangered public safety.

Finally, this tendency to fight over religious issues and to drag an enemy’s piety

into public view was not proof of decadence; instead it was healthy for the Roman civic

cult. Roman civic life revolved around the idea that leaders could submit their ideas,

their opinions, and their political lives to the judgment of their fellow citizens. Public

discussion indicated public interest. This particular case is unusual only in that it was

rare to debate this particular aspect of Roman religion, since in most cases, so far as we

can tell from the sources, the advice of the quindecemviri sacris faciundis or the haruspices on how to expiate a prodigy was normally implemented without much comment. In this instance, the text of the response, which went beyond merely explaining which gods had been wronged and which sacrifices needed to be carried out in expiation, provided impetus for community discussion. In addition, the text encouraged debate by listing transgressions but not naming the transgressors, and the clauses of the response, whether by accident or design, seemed perfectly tailored for Clodius and Cicero to fill in the gaps by naming each other as the malefactor. The very nature of the

220 response encouraged public discussion, but this was healthy for Roman religion and

Roman civic life, since the purpose of the debate was to analyze what was going wrong in both the religious and the political aspects of public life and to fix the problems. And

if the subject of the conflict was rare, the pattern that it took looks familiar. A conflict

over a religious issue broke out, and two opposing sides, each with an arguable case, took

their opinions to one of the sources of religious authority in the community.

221

CHAPTER 6

CONCLUSIONS

The last three decades have witnessed a transformation in our understanding of

Roman religion. Earlier generations of scholars saw Roman religion during the middle

and late Republican periods as being corrupted by contact with the Hellenistic east and

exploited by corrupt politicians. John North, Mary Beard, S. R. F. Price, John Scheid,

and many others have exposed the scholarly blind-spots and preconceptions which

influenced Cumont, Mommsen, Warde Fowler, Taylor, and others. We now see that

Roman religion was influenced by surrounding cultures, including the Greeks and

Etruscans, from Rome’s earliest days, or at least as far back as our sources go. Now we

look at Roman civic life as an amalgam of politics, religion, economics, and society. No

one aspect of civic life can really be understood without understanding that it is

embedded in all the others. The avenues of scholarly research have shifted in

consequence. The minds of an earlier generation focused on origins, trying to glean from

our sources what comprised Roman religion in its pristine state. And, while we are

forever indebted to them for the light they shed on how Roman religion interacted with the religions of the Greek east and how closely related Roman religion was to the religions of other indo-European peoples, we recognize today how permeable Roman

222 culture was to the cultures of its neighbors. We are also beginning to see how Roman religion fit together with the other components of Roman civic life.

Our change in perspective, however, has given us a whole series of new questions. For instance, scholars in the early twentieth century had no problem understanding what the Bona Dea affair or the conflict over Cicero’s house were ‘really’ all about: they were simply political squabbles using religion as a tool. Clodius and

Cicero simply exploited the civic cult to settle political scores. The rivalry between

Cicero and Clodius illustrated the bankruptcy of the civic cult during the late Republic, and were rarely if ever discussed for their religious significance. Today, however, we have to look at public conflicts over religion in a completely different light. When we see a Roman raising questions about whether one of his fellow citizens has fulfilled his obligations to the gods, we can no longer dismiss this as politics by other means. Things were more complex than that. Since politics and religion were linked, we expect to see

Romans publicly discussing how their leaders managed the civic cult. In our new scholarly environment we have to examine Roman civic institutions and see how magistrates, the senate, the assemblies, and the priestly colleges interacted both to generate disputes over piety and to try to resolve them. The examination I have conducted has led me to the following conclusions.

The structure of Roman institutions encouraged public conflicts over piety to break out. Roman aristocrats were competitive, Roman religion was complex, and Roman religious authority was fragmented. Because aristocrats competed with each other for prestige, they kept an eye on each other. They noticed ritual errors, lapses in religious behavior, even unusual attitudes toward religion. Because Roman civic life was grounded in discussion and debate, these aristocrats had plenty of opportunities to present their fellow citizens with evidence that one of their rivals was impious. After Cicero and Clodius became rivals in the wake of the Bona Dea affair, for example, the contest

223 between them was waged at least in part on the battlefield of piety. Each strove to convince his fellow citizens that his opponent was impious. Furthermore, since so many different groups had a say over religious matters, contests over piety were fought in a number of different venues, prolonging the process of deciding which party in a dispute was correct. Of course, not all conflicts over piety erupted in the framework of competitive rivalry. Sometimes a new or unforeseen situation cropped up, one which could not be handled through the normal operation of the civic cult. Since so many different groups and individuals had authority over religious matters in republican Rome, it took some sorting out before the matter could be resolved. Often the discussion resulted in a new definition of pious or impious behavior. Thus, before 200 B.C., it was not considered proper to make vows of unspecified amounts (or at least no one had ever tried it); and when Sulpicius made such a vow and Crassus challenged him, the dispute between them resulted in a new way of fulfilling obligations to the gods. Likewise, in the process of deciding what to do about Clodius’ conduct in December 62, the college of pontiffs decided once and for all that the presence of men at the rites to the Good Goddess was impious. Contests over piety did not always end once the institutions governing the Roman

community had weighed in. Clodius might feel vindicated because his jury acquitted

him, but he had to defend his piety until his death because Cicero dragged the Bona Dea

affair into every battle, turning his entire public life into a religious contest. Cicero too

might cast a satisfied gaze around his rebuilt home, but he had to defend it even after the

senators had cast their votes in his favor. Because authority did not rest in one person or

even group of people who could impose their will and end the struggle, if the contestants

wanted to continue the fight, and if both sides had enough public standing to gain an

audience in the senate or in contione, the fight could continue. And since every decision

of the senate or law of the people could be reversed by a subsequent consultum or law, no

defeat ever need be considered permanent.

Because of this, it was sometimes difficult for the Romans to draw a clear

boundary between pious and impious behavior. In 61, for instance, the college of

pontiffs created such a line, but the community, in the form of a jury, absolved the very

224 man whose behavior had led the college to create a definition in the first place. In rhetoric, piety and impiety could take on very broad definitions. Cicero argued in the De

haruspicum responso that pious behavior comprised concordia, and those who stirred up trouble, as he defined it, were not just nuisances but dangerous and impious. Of course, the Romans theoretically allotted to the gods the responsibility of punishing the impious.

This was an important element in keeping the ritual system functioning, since it usually kept the Romans’ already overburdened civic structure from having to police the

religious behavior of its citizens, but it also meant that there were often no clear

guidelines about how to deal with impieties that jeopardized the safety of the community.

Since the Romans perceived a connection between the religious and earthly health of the

community, it was inevitable that in some cases the community would have to get

involved in issues of piety. Even if it were the gods who dealt with the actual impiety,

the citizens could intervene to punish those who recklessly endangered their safety by committing impious acts. This meant that the community would have to take it upon themselves to work out a definition. It did so through the same means it used to solve

other civic problems: discussion and debate among citizens and leaders in hopes of

achieving some consensus. In some cases, it was easy for community and senate to

achieve this consensus, make a decision, and get that decision to be accepted. The

unfortunate Q. Fulvius Flaccus discovered this. He seems to have become a miserable

civic outcast after he stripped the roof off of the Bruttian temple, causing an outraged

senate to declare his act impious. The gods, so the Romans believed, punished him by

taking away his children and driving him to suicide, but, as we can tell from Livy’s

225 account, his fellow citizens did not seem to be particularly supportive of his troubles,

seeing his misfortune as just punishment, and he lived the rest of his life with a reputation

for impiety. However, when discussion and debate produced no consensus, then battles

over what constituted piety could last for some time. Neither Clodius nor Cicero could

deliver a knock-out blow against the other. Clodius escaped conviction, and Cicero

regained his house, and each was able to maintain enough public standing and support

among his fellow citizens and fellow aristocrats to continue his public career in the face

of the other’s repeated accusation of impiety. Thus they kept up their battle over piety

until Clodius yielded the field by dying.

Finally, contests such as the one between Cicero and Clodius demonstrated the

health of the civic cult, not its weakness. The outrage over Clodius’ behavior at Caesar’s

house, the public interest in the meaning of the haruspices’ response, and, perhaps more

than anything, the Romans’ willingness to listen to Cicero and Clodius level charge and

counter-charge for a decade reveal that the Roman community did not feel alienated from

the civic cult. Furthermore, contests over piety demonstrate the vitality of Roman

religion during the republican era. Rome’s leaders reckoned that piety was something

worth discussing, that proper management of the civic cult was important, and that their

fellow citizens, who had chosen the people who would lead the community, thought it

important for their leaders to be pious. The structure of civic religion allowed public contests over piety to occur, yet these contests ensured that the community would continue to observe the practice of their religion and to have a say in how it operated.

226 ‘Politicization’ helped the civic cult meet new challenges and continue to fulfill its role in community life.

227

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